STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF DESTIN, a Florida )
Municipality, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3287
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
) WALTON COUNTY, a political ) subdivision of the State of ) Florida, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4555
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 26, 1957, in Destin, Florida.
APPEARANCES
For Petitioners: Joseph D. Lorenz, Esquire City of Destin ETHEREDGE, MILLER, LORENZ,
LUNGSTRUM AND HEFLIN, P.A.
226 Troy Street, Northeast
Fort Walton Beach, Florida 32545
Walton County George Ralph Miller, Esquire
Post Office Box 657
DaFuniak Springs, Florida 32433
For Respondent: Vernon L. Whittier, Jr., Esquire Department of Department of Transportation Transportation Haydon Burns Building, Mail Station 50
605 Suwannee Street
Tallahassee, Florida 32399-0450
Ed Pantaleon, Esquire, observed the formal hearing on behalf of the Department of Natural Resources.
PROCEDURAL STATEMENT
The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), initially decided to reclassify a road, which was formerly a part of U.S. Highway 98, located in Okaloosa and Walton Counties as part of the Okaloosa and Walton County road systems. By notice dated July 1, 1986, the Department informed the County Commissions of Okaloosa and Walton Counties of its proposed action. The City of Destin filed a Petition for Formal Administrative Hearing on August 13, 1986, contesting the proposed reclassification. Walton County filed a Petition for Formal Administrative Hearing on October 30, 1986, also contesting the proposed reclassification.
The Petitions were forwarded to the Division of Administrative Hearings. The City of Destin's case was assigned case number 86-3287 and Walton County's case was assigned case number 86-4555. A Motion to Consolidate the cases was granted.
A Motion for Leave to Amend Petition filed by the City of Destin was granted by Order dated December 16, 1986.
A Petition of the Department of Natural Resources for Leave to Intervene and a Motion for Reconsideration of Department of Natural Resources Petition for Leave to Intervene were denied.
Prior to the commencement of the formal hearing, separate prehearing statements were filed by each of the parties. To the extent that the parties agreed to the existence of relevant facts, findings of fact have been made in this Recommended Order.
At the formal hearing, the Petitioners presented the testimony of Allen Potter, Dennis Wood, Anglin Corsey, Dewey Wilson, Raymond Hall and Jack Beckland. The City of Destin offered 4 exhibits which were marked as "Destin" exhibits 1-4 and were accepted into evidence. Walton County offered 3 exhibits which were marked as "Walton" exhibits 1-3 and were accepted into evidence.
The Department presented the testimony of Jack Curtis Tucker, Jr., and Dennis Wood. The Department offered 4 exhibits which were marked as "DOT" exhibits 1-4 and were accepted into evidence.
The parties also offered 3 exhibits which were marked as "Joint" exhibits 1-3 and were accepted into evidence.
One public witness, Lucyle Middleton, also testified.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. In the Appendix it has been indicated where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.
ISSUE
What is the proper classification of the portion of road located in southern Okaloosa and Walton Counties formerly designated as part of U.S. Highway 98?
FINDINGS OF FACT
U.S. Highway 98 runs in an east-west direction through the southern portion of Okaloosa and Walton Counties.
A new portion of highway connecting with U.S. Highway 98 in Walton County in east and in Okaloosa County in the west was constructed (hereinafter referred to as "New Highway 98"). This new highway was available for use in May, 1956.
New Highway 95 was constructed with the intention of re-routing U.S. Highway 95 along the new portion of highway.
The American Association of State Highway Officials approves the designation of U.S. Highway routes.
Reclassification of New Highway 95 began in April or May, 1956. Relocation of U.S. Highway 95 to New Highway 95 was approved on November 5, 1956.
New Highway 95 replaced a portion of U.S. Highway 95 located in Okaloosa and Walton Counties (hereinafter referred to as "Old Highway 95").
Old Highway 95 is approximately 7.2 miles in length.
Old Highway 90 connects at intersections with U.S. Highway 98 in the east in Walton County and with U.S. Highway 98 in the west in Okaloosa County.
U.S. Highway 90 is a principal arterial road and is part of the State road system.
The portion of Old Highway 98 located in Okaloosa County is entirely within the corporate limits of the City of Destin. The City of Destin was incorporated on November 6, 1984. The City of Destin has a population of more than 1,000 and less than 5,000. It has been designated as a "census designated place" by the United States Bureau of Census. The City of Destin has also been designated as a part of the Fort Walton Beach "urbanized area" by the United States Bureau of Census. The population of the Fort Walton Beach urbanized area is more than 50,000.
The City of Destin's urban boundary coincides with the Okaloosa-Walton County line where Old Highway 98 crosses the Okaloosa-Walton County line.
There are no incorporated areas or "census designated places" along the portion of Old Highway 98 in Walton County. The portion of Old Highway 90 located in Walton County has not been designated as an urbanized area by the United States Bureau of Census.
There are several settlements -- Miramar Beach, Seascape and Tang-o- Mar Beach -- along the portion of Old Highway 98 in Walton County. These settlements have not been designated as places by the United States Bureau of Census.
Due to construction of New Highway 98, the Department began a reclassification review of Old Highway 98.
As part of the reclassification review, the Department placed traffic counters at appropriate locations along Old Highway 98. A traffic count was conducted during a 24-hour period on May 22 and 23, 1986.
The Department determined that Old Highway 98 constituted a road within "rural element number 11" on Table Number 4, System Elements, Definitions, Typical Functional Classification, and Coefficients, Chapter 14-12, Florida Administrative Code.
The Department applied the Minimum Attribute Levels for Rural Functional Models, Rural Arterial, of Table Number 1, Chapter 14-12, Florida Administrative Code, to rural element 11. Old Highway 95 was allocated one point for the traffic factor, trucks, network factor and access factor attributes of Table Number 1, Rural Arterial. No score was awarded for the extent of road (miles) or mobility attributes. Based upon this application, the Department determined that Old Highway 95 was not a rural arterial road.
The Department then applied the Minimum Attribute Levels for Rural Functional Models, Rural Collector, of Table Number 1, Chapter 14-12, Florida Administrative Code, to rural element 11. As a rural collector road, Old Highway 95 was allocated one point for all of the attributes except the intersection attribute. Based upon this application, the Department determined that Old Highway 95 was a rural collector road.
The Department published notice of public hearings in the Destin Log. Notice of a public hearing conducted at the Bay Elementary School, Point Washington, Walton County, Florida, on June 5, 1956, was published on May 21, 1956. Notice of a public hearing conducted at the Community Center, Destin, Okaloosa County, Florida, on June 17, 1986, was published on May 31, 1956.
Notice of the public hearings of June 5 and 17, 1956, were also published in the Florida Administrative Weekly.
The notices of the public hearings were published before the traffic count conducted by the Department was completed. The traffic count was conducted, however, before the public hearings were held.
The Destin Log, which is located in Okaloosa County, is published twice weekly and is available to the public in Okaloosa and Walton Counties. The Destin Log has a circulation of 1,653 in southern Walton County and 200 in northern Walton County. Walton County's population is approximately 21,300.
Input received at the two public hearings was considered by the Department in reclassifying Old Highway 98.
Notice of Intent dated July 1, 1986, was provided by the Department to the Chairperson of the Okaloosa and Walton County Commissions that the Department intended to reclassify Old Highway 98 as a collector road and transfer the portions of Old Highway 98 located in Okaloosa and Walton Counties from that State highway system to the counties.
The City of Destin was not provided with written notice of intent.
In response to the Notice of Intent, Walton County timely filed a Petition for Formal Administrative Hearing. Okaloosa County did not protest the proposed reclassification of Old Highway 98 located in Okaloosa County. The
City of Destin did challenge the proposed reclassification of Old Highway 98 located in Okaloosa County.
M.T. and Amelia B. Fountain granted the State of Florida a 100-foot segment of right-of-way along Old Highway 98 in Walton County. The Deed contains a reverter clause providing that the property will be returned to the Fountains if the road ceases to be used or maintained as a state or federal highway.
The portion of Old Highway 98 located in Okaloosa County was resurfaced in 1982. The portion of Old Highway 98 located in Walton County was resurfaced in 1984.
The physical condition of Old Highway 98 is the same or better than the condition of like roads in Okaloosa and Walton Counties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1906 Supp.).
Pursuant to Section 335.01(2), Florida Statutes (1985), all public roads in the State of Florida are to be divided into four systems:
The State Highway System;
The State Park Road System;
The county road system; and
The city street system.
Section 335.04(1), Florida Statutes (1985), charges the Department with the following duties with regard to the classification of public roads:
(1)(a) The department has the responsibility of data collection for planning and functional classification
purposes and shall evaluate and functionally classify all the public roads in the state. Each road shall be assigned to the appropriate public road system, as defined in
s. 334.03, on the basis of its functional classification.
(b)1. Beginning July 1, 1982, the department shall evaluate and classify every public road at least once every 5 years The functional evaluations shall consider the
character of service of the roads in relation to the total public road system, including traffic volume, route length, truck volumes, mobility, land access, and other significant factors... [Emphasis added].
In carrying out the Department's responsibility pursuant to Section 335.04(1), Florida Statutes (1985), the Department has evaluated and classified Old Highway 95 and has determined it is a part of the county road systems of Okaloosa and Walton Counties.
The City of Destin and Walton County have challenged the Department's exercise of its duty to classify Old Highway 95. The City of Destin and Walton County have contended that the Department's proposed reclassification of Old Highway 95 is improper due to several alleged procedural and substantive irregularities in the Department's evaluation and classification of Old Highway
Each of the alleged procedural and substantive irregularities in the Department's proposed classification of Old Highway 95 are discussed, infra.
PROCEDURAL REQUIREMENTS.
Public Hearing.
Pursuant to Section 335. 04(1)(b)1, Florida Statutes (1985), the Department is required, "as an integral part of its evaluation procedure," to hold a public hearing in the county affected by its evaluation. See Rule 14- 12.013(4), Florida Administrative Code. The public hearing is to be conducted to "receive public input" and is to be conducted before the Department makes any final decision. Notice of the public hearing is required by Rule 14- 12. 013(4), Florida Administrative Code, to be given in the following manner:
Notice of the public hearing shall be published in the Florida Administrative Weekly and in a newspaper of general circulation in the county at least 14 days prior to the date set for the hearing.
Publication of notice in a "newspaper of general circulation" is governed by Chapter 50, Florida Statutes (1985).
The City of Destin and Walton County have contended that the notices of the public hearings conducted by the Department in these cases were defective for two reasons: (1) the notices were published prior to the time that the Department completed the collection of data necessary to complete its evaluation; and (2) the Destin Log is not a "newspaper of general circulation" in Walton County.
As to the first point raised by the Petitioners, the evidence proved that the Department published notice of the hearings it conducted in Okaloosa and Walton Counties on May 31 and 21, 1986, respectively. The evidence also proved that the notices were published at least 14 days prior to the date set for the hearings. Finally, the evidence proved that the notices of the hearings were published prior to the date on which the Department conducted its traffic count on Old Highway 98 (May 22- 23, 1986). The traffic count was, however, completed prior to the dates the public hearings were conducted.
The Petitioners fail to comprehend the purpose of requiring that the Department conduct a public hearing as a part of its functional classification evaluation. The purpose of requiring that a public hearing be held is to allow the citizens of the county in which a road under evaluation is located to provide "public input" to the Department. The public hearing is not intended as a forum for the review of information collected by the Department or to contest a proposed decision by the Department. Section 335.04(1)(b)1, Florida Statutes, and Rule 14-12.013(4), Florida Administrative Code, provide that public hearings are an "integral part" of the evaluation procedure and not an opportunity to review the Department's proposed decision.
Based upon the foregoing, it is concluded that the Department gave notice of the public hearings it was required to conduct in Okaloosa and Walton Counties in a timely manner despite the fact that notice was given before the Department had completed its functional evaluation or its collection of the data used in completing its evaluation.
As to the second point, Walton County has argued that the Destin Log is not a newspaper of general circulation in Walton County and, therefore, the notice of the public hearing held in Walton County was ineffective. In support of this argument, Walton County points to the fact that the Destin Log is located in Okaloosa County band only has a circulation of approximately 1,553 out of a population of 21,300 in Walton County.
The fact that the Destin Log is printed or has its business office in Okaloosa County does not mean that it is not a newspaper of general circulation in Walton County. Chapter 50, Florida Statutes (1985) , requires that a newspaper must be "published" in the county in which notice is required to appear. Attorney General Opinion 074-125, 1974 Annual Report of the Attorney General 194, indicates that where a newspaper is physically printed, where the newspaper's business offices are located and where the newspaper is first circulated are irrelevant in determining whether a newspaper is "published" in the county in which the notice is required to be given. If a newspaper, such as the Destin Log, is generally circulated and available to the public in a county, it is considered published in that county even though it is physically printed in another county or has its principal offices in another county.
The extent of the circulation of the Destin Log in Walton County also does not support a conclusion that notice of the public hearing in Walton County was ineffective. The Supreme Court of Florida has indicated the following with regard to the circulation of a newspaper:
In Culclasure v. Consolidated Bond & Mortgage Co., 94 Fla. 764, 114 So. 540, we undertook to point out that the term "newspaper" as used in our constructive service statute refers to a publication appearing at daily or weekly intervals and reporting news of local interest in the varied field of activities in the community. The newspaper in order to qualify should be one of general circulation although it is not required that it be read by everyone in the county so long as it is available to the general public ... [Emphasis added D.J. Johnson v. Taggart, 92 So.2d 606 (Fla. 1957).
The Destin Log is a newspaper of general circulation available to the general public in Walton County. The fact that it is not subscribed to by everyone in Walton County does not support a conclusion that the Destin Log is not a newspaper of general circulation.
Based upon the foregoing it is concluded that the Department properly published notice of the hearings it conducted in Okaloosa and Walton Counties.
Notice of the Department's Proposed Decision.
After the Department completes its evaluation, it is required to notify "affected governmental entitles" of its decision, if the Department
determines that a public road has changed function. Section 335.04(1)(b)2, Florida Statutes 1985), and Rule 14-12.013(5), Florida Administrative Code. The notice must be given in writing within 30 days after the completion of the Department's evaluation by certified mail, return receipt requested. Rule 14- 12.013(5), Florida Administrative Code.
If a road is to be transferred from the Department to a county or municipality, Section 335.04(1) percent, Florida Statutes (1985), requires, among other things, the following:
the department shall notify such county or municipality of the pending transfer by certified mail, return receipt requested.
In this proceeding, the Department gave notice of its proposed decision to transfer responsibility of Old Highway 98 from the State to Okaloosa and Walton Counties only to those Counties. No notice was given to the City of Destin.
The City of Destin has argued that, because of the failure of the Department to provide it with notice of the Department's proposed decision, "any final action by the Department to reclassify Old U.S. Highway 95 should not be made until after proper written notice is given to the City of Destin.
In support of its position, the City of Destin has argued that failure to notify it may have "eliminated substantive quantitative and qualitative information from the decision making process ... which may have been provided by the City of Destin to the Department." The City of Destin has further argued that "[f]ailure of the Department to provide the required notice to the City of Destin may have adversely affected the City's ability to participate in the public hearing."
The City's arguments are not persuasive. The notice required by Section 335.04(1)(b)2 and 3, Florida Statutes (1955), and Rule 14-12.013(5), Florida Administrative Code, is to be given after the Department has completed its evaluation, which includes the public hearing(s) it is required to conduct. Notice is not therefore required to allow an affected governmental entity an opportunity to provide quantitative and qualitative information to the Department for consideration or to give the governmental entity an opportunity to prepare to participate in a public hearing(s) the Respondent is required to conduct before the notice is to be given. If the Department proposes to transfer a road between governmental entities, Section 335.04(1)(b)2, Florida Statutes (1955), requires notice to be given to those entities so that they may comply with the following requirement of Section 335.04(1)(b)2, Florida Statutes (1985):
A transfer of responsibility between governmental entities as the result of functional classification requirements shall be accomplished on a schedule mutually agreed upon by such governmental entities; ...
If the Department proposes to transfer a road from the State to a county or municipality, it must give notice to the county or municipality so that the county or municipality can file an objection with the Respondent concerning the physical condition of the road and pursue its administrative and judicial review rights.
It must be remembered that the proposed decision of the Department is to reclassify Old Highway 98 from a State road to a county road. The Department has not proposed, nor has the City of Destin argued that it should have proposed, to reclassify Old Highway 98 as a city street. The purpose of the notice requirement of Section 335.04(1)(b)2 and 3, Florida Statutes (1985), and Rule 14-12.013(5), Florida Administrative Code, is to inform a governmental entity that the Respondent intends to either transfer a road to or from that entity or to transfer a road from the State to the governmental entity.
Based upon the foregoing, it is concluded that the City of Destin is not an "affected governmental entity" for purposes of the notice requirements of Sections 335.04(1)(b)2, Florida Statutes (1983). The failure of the Department to give the City of Destin written notice of its proposed decision to transfer the portion of Old Highway 98 located in Okaloosa County to Okaloosa County was not inconsistent with Sections 335.04(1)(b)2 and 3, Florida Statutes (1985).
SUBSTANTIVE REQUIREMENTS.
Functional classifications.
As indicated, supra, the Department is required to functionally classify all public roads in the State. Section 335.04(1)(a), Florida Statutes (1985). The terms "functional classification" are defined in Section 334.03(8), Florida Statutes (1985), as follows:
The assignment of roads into systems according to the character of service they provide in relation to the total road network. Basic functional categories include arterial roads, collector roads, and local roads which may be subdivided into principal, major, or minor levels. Those levels may be additionally divided into rural and urban categories.
In furtherance of this definition of "functional classification" the Department has promulgated Rule 14-12.013(3), Florida Administrative Code, which provides, in pertinent part, the following:
(3) Based on the quantitative criteria set forth in this chapter and the character of service of a road in relation to the total public road system ... each public road shall be functionally classified as an urban principal arterial, urban minor arterial, urban collector, urban local road, rural principal arterial, rural minor arterial,
rural major collector, rural minor collector, or rural local road.
The purpose of functionally classifying public roads is to determine whether the road is a part of the State highway system, a county road system or a city street system.
The State highway system consists of the following:
The interstate system;
All rural arterial routes and their extensions into and through urban areas;
All urban principal arterial routes; and(d) those urban minor arterial routes on the existing primary road system as of July 1, 1977, with the addition of segments of such routes which lie between and connect those parts of the routes previously included in the primary system and which are necessary to provide continuity to the system; except that no segment in excess of 2 miles shall be
so added. [Emphasis added]. Section 334.03(19), Florida Statutes (1985).
A "county road system" is defined in Section 334.03(6), Florida Statutes (1985), as follows:
The county road system of each county consists of all collector roads in the unincorporated areas and all extensions of such collector roads into and through any incorporated areas, all local roads in the unincorporated areas, and all urban minor arterial roads not in the State Highway System.
Finally, a "city street system" is defined in Section 334.03(3), Florida Statutes (1955), as follows:
The city street system of each municipality consists of all local roads within that municipality, and all collector roads inside that municipality, which are not in the county road system.
In summary, roads in Florida are classified as one of the following and are included in either the State highway system, a county road system or a city street system, as indicated:
Class of Road System
Urban principal arterial: State highway system.
Urban minor arterial: State highway system or county
road system.
Urban collector: County road system if in an
unincorporated area and any extension into and through an unincorporated area. or
City street system if within an incorporated area and not a part of a county road system.
Urban local: County road system if in an unincorporated area. or
City street system if within a municipality.
Rural principal arterial: State highway system, including
extensions into and through urban areas.
Rural minor arterial: State highway system, including
extensions into and through urban areas.
Rural major collector: County road system if in an
unincorporated area and any extension into and through an incorporated area. or
City street system if within an incorporated area and not a part of a county road system.
Rural minor collector: County road system if in an
unincorporated area and any extension into and through an incorporated area. or
City street system if within an incorporated area and not a part of a county road system.
Rural local: County road system if in an unincorporated area. or
City street system if within a municipality.
Sequence of Review.
In performing a functional classification of a road, the Department is required to follow the following sequence of review pursuant to Rule 14- 12.015(1)(a), Florida Administrative Code:
Rural roads shall be evaluated first,
since their extensions into urban areas will influence the urban classification.
Each road shall be evaluated in descending order of classification tests, starting with the highest level (Rural Arterial or Urban Principal Arterial).
If a road fails the highest level test, it is then evaluated with the next lower level test(2) Rural Minor Arterial, Rural
Collector, or Urban Minor Arterial or Urban Collector.
Evaluation terminates with the first "passing" system Attribute Score.
If a road fails a Rural Collector or
Urban Collector test, it is determined to be a Local road by default evaluation.
The first step in a functional classification of a road is to determine whether the road is an urban or rural road An urban road is any road "within the urbanized area Rule 14-12.016, Florida Administrative Code. An
"urbanized area" is defined in Section 334.03(28), Florida Statutes (1985), as follows:
A geographical region comprising as a minimum an incorporated place and surrounding densely settled areas, as designated by the United States Bureau of Census, with a population of 50,000 or more persons, expanded to include adjacent areas as provided for by Federal Highway Administration regulations.
According to the United States Bureau of Census, Destin is within the United States Bureau of Census' Fort Walton Beach "urbanized area." The area in which Old Highway 95 is located in Walton County is not a part of the urbanized area.
Based upon the foregoing, Old Highway 95 is a rural road. Pursuant to the sequence of review provided in Rule 14- 12.015(1)(a), Florida Administrative Code, Old Highway 95 must be evaluated first as a rural road in descending order of classification tests, starting with the highest level of classification. C. Functional Classification of Old Highway 98.
Pursuant to Rule 14-12.015(3), Florida Administrative Code, the probable functional classification of a road is determined by comparing a "System Attribute Score" to the probable functional classifications for that score on Table Number 5 of Chapter 14-12, Florida Administrative Code. The "System Attribute Score" is the product of the sum of the "minimum attribute scores of Table Number 1" and the "system element coefficient of Table Number 4." Rule 14-12.015(3), Florida Administrative Code.
In order to calculate the "minimum attribute scores" for a road, Table Number 1 designates 6 attributes which are to be applied to a road and awards a score of 1 point for each attribute for which the road reaches the minimum level for the attribute specified in Table Number 1. Different minimum levels are provided for rural arterial roads and rural collector roads. Pursuant to Rule 14-12.015(1)(a)2, Florida Administrative Code, roads are to be evaluated in descending order of classification, starting with the highest level. Thus, the Department was required to determine first if Old Highway 98 should be classified as a rural arterial road.
The minimum attribute level for rural arterial roads in Table Number 1 are as follows:
Traffic Factor 3,000
Extent of Road (Miles) 20
Trucks 200
Network Factor 15,000
Access Factor 150
Mobility 3
or 50 percent of traffic volume is non-local traffic.
In applying the minimum attribute levels for rural arterial roads to Old Highway 98 the Department awarded 1 point for attributes 1 - traffic factor,
3 - trucks, 4 - network factor and 5 - access factor, or a total of 4 points. No points were awarded for attribute 2 - extent of road, or 6 - mobility.
Once the sum of the minimum attribute scores of Table Number 1 is determined, it is multiplied by the "system element coefficient of Table Number 4." Part 1 of Table Number 4 contains 17 "rural element numbers" and definitions, and assigns a "system element coefficient" for each rural element number. The Department is required to determine which rural element number definition a road comes within in order to determine the system element coefficient for that road.
In this case, the Department determined that Old Highway 98 came within the following definition of rural element number 11 of Part 1, Table Number 4:
Route beginning at one arterial intersection and ending at another arterial intersection.
This route also serves one urbanized area, or one urban area, or one community at one route end. Such a route is confined to one road.
The system element coefficient for rural element number 11 is 5. Pursuant to the Department's rules, this system element coefficient is multiplied by the sum of the minimum attribute score to calculate the System Attribute Score: system element coefficient of 5 x total minimum attribute score of 4 System Attribute Score of 20.
Once a System Attribute Score is determined, Table Number 5 is applied. According to Table Number 5, if a road has a System Attribute Score of below 30 that road fails the rural arterial test. Since the System Attribute Score of Old Highway 95 under the rural arterial test was 20, the Department concluded that Old Highway 95 was not a rural arterial road.
Evaluating a road in descending order of classification, the next classification after rural arterial is rural collector. Once the Department determines that a rural road is not a rural arterial road it must determine if the road is a rural collector road. The same steps which the Department is required to follow in determining whether a road is a rural arterial road must be followed to determine if the road is a rural collector road. The minimum attribute levels for rural collector roads provided in Table Number 1, however, are as follows:
1. Traffic Factor | 400 | |
2. Extent of Road | (Miles) | 2 |
3. Trucks | 50 | |
4. Network Factor | 1,000 | |
5. Access Factor | 25 | |
6. Intersections | 4 |
In applying the minimum attribute levels of rural collector roads in these cases, the Department awarded 1 point for each of the attributes except the intersections attribute for a total of 5 points. Old Highway 95 still came within the definition of rural element number 11 of Part I, Table Number 4 and therefore, the system element coefficient of 5 for rural element number 11 was multiplied by the sum of the minimum attribute scores of 5 to calculate a System Attribute Score of 20.
Based upon Table Number 5, if a road achieves a score of 15 or greater on a rural collector test, the road constitutes a rural major collector. Since
Old Highway 98 had a System Attribute Score of 20, the Department concluded that the portion Old Highway 98 in Walton County constituted a rural major collector road.
Pursuant to Rule 14-12.015(1)(a)4, Florida Administrative Code, the evaluation of a road terminates with the "first 'passing' System Attribute Score." Therefore, once the Department determined that Old Highway 98 had a System Attribute Score consistent with a rural major collector road, the functional classification ended.
Rural major collector roads which are located in an unincorporated area and any extension into and through an incorporated area are included in county road systems. Old Highway 98 is located in an unincorporated area in Walton County and it extends into the incorporated area of the City of Destin. Therefore, having classified Old Highway 98 as a rural major collector road, the Department determined that the portion of Old Highway 98 located in Walton County was part of the Walton County Road system and the portion of Old Highway
98 located in Okaloosa County was part of the Okaloosa County-road system.
The Department's determination that Old Highway 98 constitutes a collector road and is part of the Walton and Okaloosa County road systems has been challenged by the City of Destin and Walton County on a number of grounds. Each of those challenges is discussed, infra.
The Petitioner's challenges.
Minimum Attribute Score.
The City of Destin and Walton County both challenged the Department's determination that the minimum attribute levels for rural arterial roads for attribute 2, extent of road, and attribute 6, mobility, were not met by Old Highway 90. If the minimum attribute levels for arterial roads for attributes 2 and 6 are met by Old Highway 98, the Petitioners correctly point out that the System Attribute Score would be 30 (system element coefficient of 5 x. total minimum attribute score of 6 System Attribute Score of 30) instead of 20 as determined by the Department. Applying Table Number 5 to a System Attribute Score of 30 would indicate that Old Highway 98 was a rural minor arterial road and it would constitute part of the State highway system. The evidence and law fail to support the Petitioners' argument, however.
In determining whether a road is a rural arterial road, Table Number 1 provides that 1 point is to be awarded for the "extent of road attribute" if the road under evaluation is 20 miles or more in length. In determining whether this attribute is met, Rule 14-12.015(2)(c), Florida Administrative Code, provides that the "road" is to be utilized, as opposed to a "segment." A "rural road" for purposes of determining whether the extent of road attribute is net is defined by Rule 14- 12.015(2)(c), Florida Administrative Code, as follows:
A rural road is generally an aggregation of rural segments which comprise an extended transportation corridor. Roads generally terminate where there is a radical change in direction or in function. Usually a road has the same Florida Road Number throughout its length... [Emphasis added].
A "rural segment" is defined in rule 14-12.015(2)(a), Florida Administrative Code, as follows:
A rural segment is a portion of a road (or an entire road) which is being evaluated for functional classification. Segments are
generally bounded by intersections with equal or higher classification roads...
Based upon the definition of "rural road" and "rural segment", the Petitioners have argued that the "rural road" for purposes of applying the "extent of road" attribute is all of U.S. Highway 98. Although U.S. Highway 98 may constitute an "extended transportation corridor" as argued by the Petitioners, Old Highway 98 is not, and was not at the time of the final hearing, a part of U.S. Highway 95. The rural segment in this case is the entire road under evaluation -- Old Highway 95. Old Highway 95 is bounded by intersections with a higher classified road -- U.S. Highway 95. Old Highway 95 therefore constitutes a rural segment. It is the only segment subject to evaluation in this case and therefore constitutes the road to be evaluated. Old Highway 98 is approximately 7.2 miles in length, which is clearly less than 20 miles. Therefore, the Department properly determined that no score should be awarded for the "extent of road" attribute in determining whether Old Highway 98 is a rural arterial road.
In determining whether a road is a rural arterial road, Table Number 1 also provides that 1 point is to be awarded for the "mobility" attribute if " [t]he total number of counties in which the road is located" is 3 or more. See Table Number 1A, Chapter 14-12, Florida Administrative Code. The Petitioners again have argued that U.S. Highway 95 travels through more than 3 counties. While this is true, the Petitioners' argument must fail for the same reason that its argument concerning the "extent of road" attribute failed. The only counties that the road in this case, Old Highway 98, is located are Walton and Okaloosa Counties. Old Highway 98 is not located in 3 or more counties. Therefore, the Department properly determined that no score should be awarded for the "mobility" attribute in determining whether Old Highway 98 is a rural arterial road.
2. System Element Coefficient.
The City of Destin and Walton County have also challenged the Department's determination that Old Highway 98 comes within the definition of rural element number 11 of Part 1, Table Number 4. The Petitioners have both argued that Old Highway 98 comes within the definition of rural element number 2, 5 or 7. The system element coefficient for rural element number 2 is 15. The system element coefficient for rural element numbers 5 and 7 is 10. If these were the correct system element coefficients, the Petitioners correctly point out that the System Attribute Score would be either 60 (system element
coefficient of 15 x total minimum attribute score of 4=60) or 40 (system element coefficient of 10 x total minimum attribute score of 4 40). Applying Table Number 5 to a System Attribute Score of 60 or 40 would indicate that Old Highway
98 is a rural minor arterial road and it would constitute part of the State highway system. The evidence and law fail to support the Petitioners arguments, however.
Rural element 2 of Part I, Table Number 4, is defined as follows:
Road which serves as a bypass or circumferential route around an urbanized area, urban area, or community. Road must begin and end at principal arterial intersections.
The Petitioners have argued that Old Highway 95 "is the southern most route that can be taken in an east and west direction around or through the City of Destin due to is [sic] close proximity to the Gulf of Mexico." The Petitioners then suggest that since there is no clear definition of the term
"by-pass" or the term "circumferential route" it should be held that Old Highway
95 is "at the least a circumferential route around an urbanized area or community
Although the Petitioners are correct in arguing that there is no definition of the term "by-pass" or the terms "circumferential route" contained in the Department's rules, this does not support the conclusion suggested by the Petitioners. Not every term used in an agency rule need be specifically defined. Where no specific-definition is provided, words of common usage are to be construed in their plain and ordinary significance. Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA 1963). Construing the terms at issue in this proceeding in their plain and ordinary significance clearly supports a conclusion that Old Highway 98 is not a "by-pass" or "circumferential route" around an urbanized area, urban area or community either in Okaloosa or Walton Counties. Therefore, Old Highway 98 does not come within the definition of rural element number 2.
Rural elements 5 and 7 of Part 1, Table Number 4, are defined as follows:
5 ... Most direct route(s) beginning at an urbanized area boundary and ending at
a small urban area boundary. Such a route may involve no more than two different roads and may pass through a number of communities below 5,000 in population. If urbanized area is oblong in shape, 2 or 3 such routes serving its greatest dimension may be identified.
7 ... Most direct route connecting one urbanized or urban area with two or
more communities. The communities served must have a combined population of at least 5,000. Such a route may involve no more than two different roads and each road must connect at least two communities.
Old Highway 98 does not begin at an urbanized area boundary or end at a small urban area boundary. Therefore, Old Highway 95 does not come within the definition of rural element 5. Old Highway 98 also does not connect an urbanized or urban area with two or more communities. A "community" is defined as follows:
As defined by the United States Bureau of Census a community is a place having a population of less than 5,000 but more than 1,000. [Emphasis added).
The evidence failed to prove that Old Highway 95 connects the City of Destin, which is a community, with two or more communities with a combined population of at least 5,000. The United States Bureau of Census designates "places" and lists the population of each "place." None of the settlements along Old Highway 98 in Walton County have been designated as "places." Therefore, Old Highway 98 does not connect the urbanized area in which the City of Destin is located with "two or more communities."
3. Rule Challenge.
68. The Petitioners have also argued that Chapter 14-12, Florida Administrative Code, does not sufficiently define certain terms and phrases necessary to classify Old Highway 98. The Petitioners then argue:
The reclassification process is, therefore, being based upon subjective judgment, contrary to statutory provisions such as that which appears in F.S. 335.04(1)(b) which require that the factors being used in evaluations shall include, but not be limited to quantitative criteria. Therefore, no final agency decision shall be made until such time as rules are adopted which define terms and words currently provided for in
F.A.C. 14 which are relevant to the reclassification process as it applies to Old
U.S. 95.
69. The Petitioners' argument constitutes a challenge to the rules of the Department. In order for the Petitioners to challenge the Department's rules the Petitioners should have filed a Petition pursuant to Section 120.56, Florida Statutes (1985). The Petitioners have not filed such a Petition. Instead, the Petitioners have filed their challenge to the Department's proposed agency action pursuant to Section 120.57(1), Florida Statutes (1956 Supp.). Under Section 120.57(1), Florida Statutes (1986 Supp.), the undersigned lacks jurisdiction to decide whether the Department's rules are valid. Requests for administrative hearings pursuant to Section 120.57(1), Florida Statutes (1956 Supp.), are brought within the existing framework of rules of the agency involved.
4. One Evaluation of Old Highway 98?
70. The City of Destin has argued that the Department should have evaluated the portion of Old Highway 98 located in Okaloosa County and the portion located in Walton County separately. In defining the terms "functional classification," Section 334.03(8), Florida Statutes (1985), provides that the assignment of roads into the State highway, county road or city street systems, is to be made "according to the character of service they provide in relation to the total road network." [Emphasis added]. Therefore, the Department properly evaluated Old Highway 98 as a single road regardless of the fact that it is located in more than one county.
5. Walton County's Financial Ability to Maintain Old Highway 98.
Walton County has argued that a county to which a road is to be transferred must have the financial ability to maintain the road pursuant to "Florida Statutes 335.04(5)(c)." This statutory provision does not exist. Nor is there any statutory provision which requires that Walton County must have the financial ability to maintain the portion of Old Highway 98 to be transferred to it in order for the Department to determine that Old Highway 98 is a part of a county road system.
Section 335.04(1)(b)3, Florida Statutes (1985), requires the following:
Any road for which responsibility is being transferred from the department to a county shall be brought to a physical
condition commensurate with contemporary roads of like age and existing functional classification within that county.
Prior to the transfer of a road ... from the department to the county ... the department shall notify such county ... of the pending transfer by certified mail, return receipt requested. The county . shall have 30 days after receipt of such notice to file an objection with the department concerning the physical condition of the road ... to be transferred to
it... [Emphasis added].
Based upon this provision, the Department is only required to insure that Old Highway 98 is brought to a physical condition commensurate with contemporary roads of like age and existing functional classification within Okaloosa and Walton Counties. The evidence in this case proved that Old Highway
98 is already in such a physical condition.
The only provision requiring counties to be financially able to maintain a road transferred to it is Section 335.04(1)(c), Florida Statutes (1985), which provides, in pertinent part, the following:
Those roads which were to be transferred from the state to the counties under the
functional classification plan adopted by the department in 1977 ..., and which were to
be resurfaced by the department prior to transfer may not be transferred from the State Highway System until the required resurfacing is completed. Prior to the department's resurfacing such roads, the governing body of the county must certify that it has the financial ability to maintain the road.
This section applies only to roads functionally classified as county roads in 1977. It has no application to the proposed transfer of Old Highway 98 in 1987.
Walton County has cited no authority which requires that it be financially able to maintain the portion of Old Highway 98 to be transferred to it. Evidence concerning Walton County's ability to maintain Old Highway 98, including speculation concerning possible costs associated with imminent domain proceedings to re-acquire the right-of-way for Old Highway 98 across the Fountain's property, is therefore irrelevant.
Public Witness.
Section 120.57(1)(b)4, Florida Statutes (1986 Supp.), provides, in pertinent part, the following:
When appropriate, the general public may be given an opportunity to present oral or written communications.
Pursuant to this provision, the general public in attendance at the final hearing of these cases was given the opportunity to testify at the final hearing. One person, Lucyle Middleton, testified. Ms. Middleton voiced complaints about the intersection of Old Highway 98 and New Highway 98 in Okaloosa County. The undersigned has no jurisdiction over the alleged problem raised by Ms. Middleton. The only issue which the under signed has the authority to address is the functional classification of Old Highway 98 and the resulting road system Old Highway 98 belongs in.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order
functionally classifying Old Highway 98 as a major collector road and
transferring the portion of Old Highway 98 located in Okaloosa County to the Okaloosa County road system and the portion of Old Highway 98 located in Walton County to the Walton County road system.
DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1987.
APPENDIX Case Numbers 86-3287 and 86-4555
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
City of Destin's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 9.
2 1 and 7-8.
3 9.
4 23.
5 13.
6 5.
7 8.
9 Hereby accepted.
10-12 Irrelevant. The road to be reviewed in these cases is Old Highway 98 and not U.S. Highway 98. Whether U.S. Highway 98 constitutes a "transportation corridor" is therefore irrelevant. Even though
Old Highway 98 was a part of U.S. Highway 98 at the time of the Department's initial evaluation, at the time of this de novo proceeding Old Highway 98 was no longer a part of
U.S. Highway 98.
13-15 16.
16 15.
17
18 Not supported by the weight of the evidence. Old Highway 98 does not travel "around" the City of Destin.
19 1.
20 20.
Walton County's Proposed Findings of Fact 1 1 and 7-8.
2 23.
3 13.
4 5.
5 8.
6 24.
7-9 Irrelevant. See the discussion of the City of Destin's proposed findings of fact 10-12.
10-12 16.
13 15.
14-15 1.
16 20.
17-18 21.
19-20 Irrelevant. With regard to proposed finding of fact 19, see the discussion of this issue under Conclusions of Law. As to the proposed finding of fact 20, the United States Bureau of Census population figures were used during the final hearing of these cases.
Not supported by the weight of the evidence.
Irrelevant.
23 26.
The Department's Proposed Findings of Fact
1 | 2, 7-8, 13-14 and | 16-17. |
2 | 18-19 and 21-22. | |
3 | 9 and 23-25. | |
4 | 10-12 and 26. | |
5 | 27-28. |
COPIES FURNISHED:
Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0450
ATTN: Eleanor F. Turner, Mail Station 58
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58
605 Suwannee Street
Tallahassee, Florida 32399-0450
Joseph D. Lorenz, Esquire ETHEREDOE, MILLER, LORENZ LUNGSTRUM AND HEFLIN, P.A.
226 Troy Street, NE
Fort Walton Beach, Florida 32548
George Ralph Miller, Esquire Post Office Box 687
DeFuniak Springs, Florida 32433
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF DESTIN,
a Florida Municipality, Petitioner,
vs. CASE NO. 86-3287
DEPARTMENT OF TRANSPORTATION,
Respondent.
/ WALTON COUNTY, a political
subdivision of the State of Florida, Petitioner,
vs. CASE NO. 86-4555
DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
The Record in these proceedings and the Recommended Order of the Hearing Officer have been reviewed. The Recommended Order is considered correct in both fact and law and is incorporated as part of this Final Order. Petitioner, City of Destin, (hereinafter Destin) timely filed Exceptions to Recommended Order which are addressed below.
Destin's exception to Paragraph 11 of the Findings of Fact is not supported by the record. Joint Exhibit 3, Number of Inhabitants, Florida, published by the U.S. Department of Commerce, Bureau of Census, contains a map of the Fort Walton Beach Urbanized area on page 11-49. Contrary to Destin's assertions, Freeport and DeFuniak Springs are not included in the Fort Walton Beach Urbanized area but are merely reference points on the map similar to Gulf
Breeze-Harold located in Santa Rosa County. The Fort Walton Urbanized Area ends at the Okaloosa/Walton County line. That DeFuniak Springs and Freeport are not part of the Fort Walton Beach Urbanized area is also confirmed on page 11-33 of Joint Exhibit #3 which lists the component parts of each urbanized area.
DeFuniak Springs and Freeport are not listed under the Fort Walton Beach Urbanized area. Therefore the Hearing Officer's binding is supported by competent substantial evidence.
Destin's exception to the Hearing Officer's interpretation of the public hearing requirement is also without merit. As noted by the Hearing Officer on page 7 and 8 of the Recommended Order, the purpose of the public hearing is to "receive public impact", not as Destin urges, to review the information collected by the Department or to contest the proposed decision by the Department. Since the Department complied with the notice provisions of 335.02(1), Fla. Stat. (1985) by giving published notice at least fourteen (14) days prior to the hearing, the Department does not see a need to hold an additional public hearing.
Destin's, exception to the notice of the Department's proposed decision is without merit. 335.04(1)(b)2, Fla. Stat. (1985) states
When the department determines that
a public road has changed function, it shall within 30 days notify the affected governmental entities in writing . . . .
The Hearing Officer correctly interpreted this language as requiring the Department to give notice after it has completed its evaluation, to the governmental entity affected. In this instance, the City of Destin is not an affected governmental entity. The reclassification of old Highway 98 affects only Okaloosa and Walton counties. There was never any contention, nor does Destin ever argue, that old Highway 98 should be reclassified as a city street within Destin's jurisdiction. Since the purpose of the notice required by 335.04(1)(b)2 is to inform the affected governmental agency of the intended transfer, so that such entity can comply with the further provisions of 335.04, Fla. Stat. (1985), the Department was required to give notice of intent to transfer Old Highway 98 only to Okaloosa and Walton Counties.
Destin's exception to that portion of the Recommended Order entitled "The Petitioner's Challenges" is without merit. The Hearing Officer was correct in concluding that the "road" to be reclassified in the instant case was Old Highway 98 which is comprised of a single rural segment terminating where there is a radical change in function. Consequently the entire rural road under evaluation in this case is also a rural segment. Since Old Highway 98 is only
7.2 miles in length and is located in only two counties, the Department correctly determined that no scores be awarded for "extent of road" and "mobility" attributes. Additionally, at the time of the administrative hearing, Old Highway 98 was no longer a U.S. designated highway and was no longer even a segment of the extended transportation corridor of U.S. Highway 98.
The Hearing Officer was also correct in concluding that Old Highway 98 fell within the definition of rural element number 11 of Part I, Table Number 4.
Contrary to Destin's assertions, there was no competent substantial evidence in support of Petitioner's assertion that Old Highway 98 was a bypass or circumferential route around an urbanized area. Although Old Highway 98 is the southern most east-west road, it is not a bypass or circumferential route.
Destin's exception that Fla. Admin. Code Rule 14-12 is inapplicable to the instant case because its terms and phrases are either vague or not defined is a rule challenge. Questioning the criteria contained in a rule constitutes a rule challenge which is inapplicable in a 120.57, Fla. Stat. (1985) hearing. Rule challenges are separate and distinct proceedings governed by 120.56, Fla. Stat. (1985).
Destin's exception to the Hearing Officer's conclusion that Old Highway 98 was properly evaluated as one segment even though located in two counties is without merit. The Department evaluates and reclassifies roads based upon their relation to the total road network consistent with 334.03(8), Fla. Stat. (1985), not based upon local jurisdictional boundaries.
Destins exception to the Hearing Officer's conclusion regarding Walton County's ability to maintain Old Highway 98 is irrelevant since Walton County failed to take exception to such finding and Destin has no substantial interest in such finding. In any event there is no statutory requirement that a county
must be financially able to maintain a road transferred to it pursuant to 335.04 Fla. Stat. (1985).
THEREFORE IT IS ORDERED that Old Highway 98 is functionally classified as a rural major collector road.
IT IS FURTHER ORDERED that the portion of Old Highway 98 located in Okaloosa County is transferred to the Okaloosa County road system and the portion of Old Highway 98 located in Walton County is transferred to the Walton County road system.
DONE AND ORDERED this 17th day of July, 1987.
KAYE N. HENDERSON P. E.
Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
Judicial review of agency final order may be pursued in accordance with Section
120.68 Florida Statutes and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal a Notice of appeal must be filed with the Departments Clerk of Agency Proceedings Haydon Burns Building 605 Suwannee Street MS 58 Tallahassee Florida 32399-0458 and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Departments Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3) Florida Statutes.
Copies furnished to
LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee Florida 323991550
VERNON L. WHITTIER JR. ESQUIRE
Department of Transportation Haydon Burns Building MS 58 605 Suwannee Street Tallahassee Florida 32J99O45B
JOSEPH D. LORENZ, ESQUIRE
226 Troy Street NE
Fort Walton Beach Florida 32548
GEORGE RALPH MILLER, ESQUIRE
Post Office Box 6B7
DeFuniak Springs Florida 32433
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
CITY OF DESTIN NOT FINAL UNTIL TIME EXPIRED TO FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
vs. CASE NO. 87-925
DOAH CASE NO. 86-3287
DEPARTMENT OF TRANSPORTATION,
Appellee.
/ Opinion filed January 27, 1989.
An Appeal from an order of the Department of Transportation.
Joseph D. Lorenz of Etheredge, Miller, Lorenz, Lungstrum & Heflin, P.A., Fort Walton Beach, for Appellant.
Maxine F. Ferguson and Thomas H. Bateman, III, Tallahassee, for Appellee.
PER CURIAM.
Appellant/City of Destin, a municipality located in Okaloosa County, appeals a Department of Transportation final order which reclassifies a state highway located within Okaloosa and Walton counties. The effect of such reclassification is to transfer the portion of the highway located within each county to, respectively, the Okaloosa County and Walton County road systems.
The City asserts numerous claims of error; appellee/Department of Transportation, in addition to arguing the merits of the City's claims, replies that the functional classification of a road is not reviewable under the Administrative Procedure Act.
Pursuant to Chapters 334 and 335, Florida Statutes (1987), the state's public roads are divided into four systems: the state highway system, the state park road system, the county road system and the city street system. Which system a road belongs to is determined by the classification that the Department assigns to the road. The Department is directed to evaluate and classify public roads based upon factors such as traffic volume, route length and other criteria. The Department is obligated to evaluate and classify every public road on a periodic basis; additionally, the Department is required to evaluate specific roads if requested to do so by a city or county.
The instant case concerns the Department's decision to reclassify a state highway known as "Old 98, 1/ which begins in Okaloosa County and runs eastward
to terminate in Walton County. The portion located within Okaloosa County is also situated entirely within the Destin city limits. The effect of the reclassification was to remove the road from the state highway system and place it within the county road systems of the two counties in which it is located, with the result that responsibility for the maintenance of the road would be transferred from the state to the counties. Okaloosa and Walton counties were notified of appellee's intention. Walton County and the City both challenged the reclassification and requested (and received) an administrative hearing pursuant to Section 120.57, Florida Statutes (1987). Okaloosa County did not request a hearing. The City's and Walton County's cases were consolidated.
After the hearing, the hearing officer recommended that a final order issue reclassifying the road as proposed by the Department. The City filed exceptions, and the Department in a final order directed that the road be reclassified and transferred to the respective county road systems. The City of Destin appealed; Walton County did not.
We agree with the Department's contention that the reclassification of a public road is outside the coverage of the APA. Section 335.04(1)(b)(3) provides that a road for which responsibility is being transferred from the Department to a county or municipality shall be brought to an acceptable physical condition, and specifically provides for Chapter 120 review at the request of either the Department or the transferee if the transferee files an objection with the Department concerning the physical condition of the road and the parties are unable to reach agreement. Section 335.04(1)(c) authorizes Chapter 120 review, under some circumstances, if the Department and a transferee county are unable to agree on the financial ability of the county to maintain the road. A provision for Chapter 120 review of the reclassification is conspicuously absent. The maxim that the mention of one thing implies the exclusion of the other leads to the conclusion that the-legislature did not intend for the functional classifications of public roads to fall within the ambit of Chapter 120 review. See United States v. First National Bank of Crestview, 513 So.2d 179, 181 (Fla. 1st DCA 1987; Wanda Marine Corp. v. State, Department of Revenue, 305 So.2d 65, 70 (Fla. 1st DCA 1974). Statutory provisions external to Chapter 120 remedies may limit access to such remedies.
See Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U. L. Rev. 965, 1111 (1986). Since the City - a non-transferee - is not entitled to review of its claims under Chapter 120, this appeal is DISMISSED.
SMITH, C.J., ERVIN and NIMMONS, JJ., CONCUR.
FOOTNOTE
1/ The public road in question was originally a part of U.S. 98. A new portion of highway which begins and ends at intersections with U.S. 98 and runs parallel to Old 98 was constructed, and U.S. 98 was realigned so that the new portion ("New 98") replaces Old 98 as a part of U.S. 98.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
CITY OF DESTIN, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO. 87-925
DOAH CASE NO. 86-3287
DEPARTMENT OF TRANSPORTATION,
Appellee.
/ Opinion filed March 16, 1989.
An Appeal from an order of the Department of Transportation.
Joseph D. Lorenz of Etheredge, Miller, Lorenz, Lungstrum & Heflin, P.A., Fort Walton Beach, for Appellant.
Maxine F. Ferguson and Thomas H. Bateman, III, Tallahassee, for Appellee.
PER CURIAM.
Appellant/City of Destin, a municipality located in Okaloosa County, appeals a Department of Transportation final order which reclassifies a state highway located within Okaloosa and Walton counties. The effect of such reclassification is to transfer the portion of the highway located within each county to, respectively, the Okaloosa County and Walton County road systems.
The instant case concerns the Department's decision to reclassify a state highway known as "Old 98," 1/ which begins in Okaloosa County and runs eastward to terminate in Walton County. 2/ The portion located within Okaloosa County is also situated entirely within the Destin city limits. The effect of the reclassification was to remove the road from the state highway system and placed it within the county road systems of thee two responsibility for the maintenance of the road would be transferred from the state to the counties.
Okaloosa and Walton counties were notified of appellee's intention Walton County and the City both challenged the reclassification and requested (and received) an administrative hearing pursuant to Section 120.57, Florida Statutes (1987).
Okaloosa County did not request a hearing. The City's and Walton County's cases were consolidated.
At the hearing, evidence was presented by the parties concerning the proper application of the requirements and criteria of Chapter 14-12, Fla. Admin. Code governing road reclassification. The City contended that the proposed reclassification was contrary to the applicable requirements in several respects. The City also contended that it should have been furnished -- as were
Walton and Okaloosa counties -- with the notice of intent required by Section 335.04(1)(b)2. 3/ Florida Statutes and Fla. Admin. Code Rule 14-12.013(5) 4/ and that the notice of public hearing required by Section 335.04(1)(b)1. 5/ Florida Statutes (1985), and Rule 14-12.0l3(4) 6/ Fla. Admin. Code was deficient because such notice was published prior to the time that the Department completed the collection of data necessary to complete its evaluation.
On appeal, the City continues to assert the above referred deficiency in the notice of public hearing required by Section 335.04(1)(b)1. and Rule 14- 12.013(4). This assertion was properly dealt with by the hearing officer in his recommended order from which we quote as follows:
[T]he evidence proved that the Department published notice of the hearings it conducted in Okaloosa and Walton Counties on May 31 and 21, 1986, respectively. The evidence also proved that the notices were published at least 14 days prior to the date set for the hearings. Finally, the evidence proved that the notices of the hearings were published prior to the date on which the Department conducted its traffic count on Old Highway 98 (May 22-23, 1986). The traffic count was, however, completed prior to the dates the public hearings were conducted.
The Petitioners fail to comprehend the purpose of requiring that the Department conduct a public hearing as a part of its functional classification evaluation. The purpose of requiring that a public hearing be held is to allow the citizens of the county in which a road under evaluation is located to provide "public input" to the Department. The public hearing is not intended as a forum for the review of information collected by the Department or to contest a proposed decision by the Department. Section 335.04(1)(b)1, Florida Statutes, and Rule 14-12.013(4), Florida Administrative Code, provide that public hearings are an "integral part" of the evaluation procedure and not an opportunity to review the Department's proposed decision.
Based upon the foregoing, it is concluded that the Department gave notice of the public hearings it was required to conduct in Okaloosa and Walton Counties in a timely manner despite the fact that notice was given before the Department had completed its functional evaluation or its collection of the data used in completing its evaluation.
As for the City's contention on appeal that it was entitled under Section 335.04(1)(b)2. and Rule 14-12.013(5), as an "affected governmental entity," to
notification of the decision to reclassify the road, we again agree with the hearing officer's treatment of that contention and we quote from the recommended order:
After the Department completes its evaluations, it is required to notify "affected governmental entities" of its decision, if the Department determines that a public road has changed function. Section 335.04(1)(b)2, Florida Statutes (1985), and Rule 14- 12.013(5), Florida Administrative Code. The notice must be given in writing within 30 days after the completion of the Department's evaluation by certified mail, return receipt requested. Rule 14-12.013(5), Florida Administrative Code.
If a road is to be transferred from the Department to a county or municipality, Section 335.04(1)(b)3, Florida Statutes (1985), requires, among other things, the following:
the department shall notify such county or municipality of the pending transfer by certified mail, return receipt requested.
In this proceeding, the Department gave notice of its proposed decision to transfer responsibility of Old Highway 98 from the State to Okaloosa and Walton Counties only to those Counties. No notice was given to the City of Destin.
The City of Destin has argued that, because of the failure of the Department to provide it with notice of the Department's proposed decision, "any final action by the Department to reclassify Old U.S. Highway 98 should not be made until after proper written notice is given to the City of Destin. . . ." In support of its position, the City of Destin has argued that failure to notify it may have "eliminated substantive quantitative and qualitative information from he decision making process . . . which may have been provided by the City of Destin to the Department."
The City of Destin has further argued that "[f]ailure of the Department to provide the required notice to the City of Destin may have adversely affected the City's ability to participate in the public hearing.
The City's arguments are not persuasive. The notice required by Section 335.04(1)(b)2 and 3, Florida Statutes (1985), and Rule 14-12.013(5), Florida Administrative Code, is to be given after the Department has completed its evaluation, which includes the public hearing(s) it is required to conduct. Notice is not therefore required to allow an affected governmental entity an opportunity to provide quantitative and qualitative information to the Department for consideration to give the
governmental entity an opportunity to prepare to
participate in a public hearing(s) the Respondent is required to conduct before the notice is to be given. If the Department proposes to transfer a road between governmental entities, Section 335.04(1)(b)2, Florida Statutes (1985), requires notice to be given to those entities so that they may comply with the following requirement of Section 335.04(1)(b)2, Florida Statutes (1985):
A transfer of responsibility between governmental entities as the result of functional classification requirements shall be accomplished on a schedule mutually agreed upon by such governmental entities;
. . .
If the Department proposes to transfer a road from the State to a county or municipality, it must give notice to the county or municipality so that the county or municipality can file an objection with the Respondent concerning the physical condition of the road and pursue its administrative and judicial review rights.
It must be remembered that the proposed decision of the Department is to reclassify Old Highway 98 from a State road to a county road. The Department has not proposed, nor has the City of Destin argued that it should have proposed, to reclassify Old Highway 98 as a city street. The purpose of the notice requirement of Section 335.04(1)(b)2 and 3, Florida Statutes (1985), and Rule 14-12.013(5), Florida Administrative Code, is to inform a governmental entity that the Respondent intends to either transfer a road to or from that entity or to transfer a road from the State to the governmental entity.
Based upon the foregoing, it is concluded that the City of Destin is not an "affected governmental
entity" for purposes of the notice requirements of Sections 335.04(1)(b)2, Florida Statutes (1985). The failure of the Department to give the City of Destin written notice of its proposed decision to transfer the portion of Old Highway 98 located in Okaloosa County to Okaloosa County was not inconsistent with Sections 335.04(1)(b)2 and 3, Florida Statutes (1985). (Emphasis in original)
The Department asserts on appeal that the City, not being a transferee, did not have standing to be heard in a 120.57 hearing on the subject road reclassification. This assertion comes too late. See City of Key West v.
Askew, 324 So.2d 655 (Fla. 1st DCA 1975); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc. Inc., 500 So.2d 202 (Fla. 1st DCA 1986). The City filed its petition for a 120.57 hearing, the Department referred it to D.O.A.H. for such hearing, and the matter proceeded in the normal course through a full evidentiary hearing and final order with no hint of a standing issue raised by the Department until the filing of its appellee's brief herein. 7/
However, the Department also contends that the City's petition for hearing and the Department's final order should be quashed because, it claims, there was a lack of subject matter jurisdiction. 8/ The Department points to the fact that Section 335.04 specifically provides for Chapter 120 review where the county or municipality files an objection concerning the physical condition of the road (Section 335.04(1)(b)3.) or when the Department and county are unable to agree on the financial ability of the county to maintain the road (Section 335.04(1)(c)). The Department contends that because of the express mention of the above two bases for Chapter 120 review, the legislative intent must be deemed to exempt the Department's functional classification of roads from the ambit of the APA, the Department relying upon the maxim expressio unius est exclusio alterius -- the mention of one implies the exclusion of another. We disagree. 9/
Section 335.044(1)(a), Florida Statutes (1985), states that the Department has the responsibility "of data collection for planning and functional classification purposes and shall evaluate and functionally classify all the public roads in the state." It also directs the Department to assign each road to the appropriate public road system. Section 335.04(1)(b)1. requires the Department to make an evaluation and reclassification every five years. The Department is directed to adopt and set forth the evaluation criteria in a rule pursuant to Chapter 120. The Department is also required to "hold a public hearing in the county affected as an integral part of its evaluation procedures in order to receive public input prior to making any final determination of classification." Sections 335.04(1)(b)2. and 3. deal with the transfer of roads as a result of a change of function pursuant to such evaluations. Section 335.04(1)(b)4 directs the Department to perform such evaluations when requested by cities or counties within a reasonable time not to exceed one year.
These statutory provisions make several propositions rather clear: (1) the Department cannot make such evaluation and classification of function without first adopting criteria in a rule- making proceeding pursuant to Chapter 120 (which the Department has done in the form of Rule 14-12); (2) the Department must hold a public hearing on each road evaluation and classification and receive public input; (3) the Department's classification of road function must be based on the above; (4) roads must thereafter be assigned by the Department to the appropriate road system pursuant to such classification; and (5) where it becomes necessary by reason of the reclassification of road function, such roads will be transferred to the appropriate agency., i.e., city, county or state, pursuant to the applicable law. While Sections 335.04(1)(b)3. and 335.04(1)(c) do contain specific reference to Chapter 120 review when the parties are unable to agree at the time of transfer upon the condition of the road or the transferee county's ability to financially maintain it, we do not believe that the entire balance of the administrative process governing the classification and reclassification of roads was intended to thereby be exempt from Chapter 120 review. We, therefore, reject the Department's argument that the City's petition for Chapter 120 review and the Department's final order should be quashed for lack of subject matter jurisdiction.
We have, therefore, examined and considered the City's substantive attacks made on appeal in which the City contends that the subject road was erroneously reclassified contrary to the applicable statutory and rule criteria. We find no such error.
We also reject the City's assertions that the final order was based upon inadequately explicated incipient agency policy. The City's reliance upon City of Delray Beach, supra, is misplaced. At the time the Department reclassified
the road involved in Delray Beach, the Department had adopted no rules establishing objective criteria to be applied in classifying a road. In contrast, as earlier noted, the Department's actions in the instant case were taken pursuant to a rule providing objective criteria for road classification. Fla. Admin. Code Rule 14-12.
AFFIRMED.
SMITH, C.J. ERVIN and NIMMONS, JJ., CONCUR.
FOOTNOTES
1/ The public road in question was originally a part of U.S. 98. A new portion of highway which begins and ends at intersections with U.S. 98 and runs parallel to Old 98 was constructed, and U.S. 98 was realigned so that the new portion ("New 98") replaces Old 98 as a part of U.S. 98.
2/ Pursuant to Chapters 334 and 335, Florida Statutes (1987), the state's public roads are divided into four systems: the state highway system, the state park road system, the county road system and the city street system. Which system a road belongs to is determined by the classification that the Department assigns to the road. The Department is directed to evaluate and classify public roads based upon factors such as traffic volume, route length and other criteria. The Department is obligated to evaluate add classify every public road on a periodic basis; additionally, the Department is required to evaluate specific roads if requested to do so by a city or county.
3/ Section 335.04(1)(b)2., Florida Statutes, provides:
2. When the department determines that a public road has changed function, it shall within 30 days notify the affected governmental entitles in writing. A transfer of responsibility between government entities as the result of functional classification requirements shall be accomplished on a schedule mutually agreed upon by such governmental entities; however, such transfer shall occur no later than 3 years after the date the governmental entities are notified.
4/ Fla. Admin. Code Rule 14-12.013(5) provides:
(5) When she Department has completed the evaluation of a public road and concluded that the road has changed functions, within 30 days the Department shall send written notification by certified mail, return receipt requested, to all affected governmental entitles.
5/ Section 335.04(1)(b)1., Florida Statutes, provides: (b)1. Beginning July 1, 1982, the department
shall evaluate and classify every public road at least once every 5 years. The functional evaluations shall consider the character of service of the roads in relation to the total public road system, including traffic volume, route length, truck volumes, mobility,
land access, and other significant factors. The factors which are used in such evaluations shall include, but not be limited to, quantitative criteria and shall be adopted by rule pursuant to chapter 120. The department shall hold a public hearing in the county affected, as an integral part of its evaluation procedures in order to receive public input prior to making any final determination of classification.
6/ Fla. Admin. Code Rule 14-12.013(4) provides:
(4) As part of the evaluation process, the Department shall hold a public hearing in the county in which the road is located in order, to receive public input prior to making any final determination. Notice of the public hearing shall be published in the Florida Administrative Weekly and in a newspaper of general circulation in the county at least 14 days prior to the date set for the hearing.
7/ The, Department has not suggested a distinction between standing to, seek
120.68 appellate review from the final order as an "adversely affected person" and standing to be heard in a 120.57 hearing in the proceedings below. See Daniels v. State, 401 So.2d 1351, 1354 (Fla. 1st DCA 1981); compare Florida Association of Nurse Anesthetists v. Department of Professional Regulation, 500 So.2d 324, 326 (Fla. 1st DCA 1986). We, therefore, do not address such potential issue.
8/ This too was raised for the first time in the Department's answer brief on appeal.
8/ We note that no such assertion was made by the Department in City of Delray Beach v. Department of Transportation, 456 So.2d 944 (Fla. 1st DCA 1984).
Although the version of Section 335.04 applicable in City of Delray Beach, did not contain the two above referred bases for Chapter 120 review, i.e. review where condition of road or financial ability of county is in issue (the same being added by Chapter 84-291, Laws of Florida) , such version did expressly provide for Chapter 120 review where "the county and department are unable to agree on the need for resurfacing." Section 335.04(1), Florida Statutes (1983).
| Issue Date | Proceedings |
|---|---|
| Jun. 04, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 27, 1989 | Opinion | |
| Jul. 17, 1987 | Agency Final Order | |
| Jun. 04, 1987 | Recommended Order | Petitioners failed to prove Department of Transportation reclassification of state road to county road improper. |
