STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RACETRAC PETROLEUM, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 93-6932
) CASE NO. 95-248 DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on August 10 and 24-25, 1995, and September 16, 1995, in Tallahassee, Florida.
APPEARANCES
For Petitioner: J. Victor Barrios
Ellen Chadwell Attorneys at Law
1026 East Park Avenue Tallahassee, Florida 32301
For Respondent: Paul Sexton
Assistant General Counsel Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE
The issue is whether Respondent should issue an access permit to Petitioner for installation of an access connection to State Road 50. Resolution of this issue also involves the determination of whether Petitioner's request for a "right-in" access connection, made subsequent to Respondent's initial denial of Petitioner's application for a "right-in/right-out" access connection actually constitutes a second or revised application which should be granted under the "deemer provisions" of Section 120.60, Florida Statutes.
PRELIMINARY STATEMENT
Petitioner filed an application for a right-in/right-out connection with Respondent on May 13, 1993. Respondent issued a Notice Of Intent To Deny with regard to the application on July 12, 1993.
Thereafter, on August 7, 1993, representatives of Petitioner and Respondent met to discuss the application denial pursuant to provisions of Section 335.184(3)(c), Florida Statutes.
Later, on September 10, 1993, Petitioner submitted a request for a right-in access connection with accompanying documentation. Petitioner now contends that this request constitutes a separate, revised application which must be granted inasmuch as Respondent failed to provide any documented response within the applicable time limits required by Section 120.60, Florida Statutes.
By correspondence dated October 7, 1993, Respondent reaffirmed the previous denial set forth in its correspondence to Petitioner of July 12, 1993.
Respondent maintains that this denial also addressed Petitioner's second submittal.
The date of Petitioner's first request for formal proceedings with regard to Respondent's denial is October 21, 1993. This Petition, upon referral to the Division of Administrative Hearings, was assigned DOAH Case No. 93-6932.
Subsequently, by Petition For Administrative Hearing dated December 15, 1994, Petitioner also requested formal administrative proceedings with regard to its September 10, 1993 submission for a right-in access connection. It is this action which serves as the vehicle for Petitioner's argument that Respondent's denial did not address the second submission by Petitioner and should be granted pursuant to the "deemer" provisions of Section 120.60, Florida Statutes. The matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 95-248.
By order dated January 30, 1995, Petitioner's December 15, 1994 motion for consolidation of both cases before the Division of Administrative Hearings was granted.
At commencement of the final hearing on August 10, 1995, Petitioner's counsel announced the amendment of Petitioner's original Petition to request relief in the form of a right-in access connection only, as opposed to the previously sought "right-in, right-out" connection. Respondent did not oppose the amendment of the Petition.
Ruling with regard to applicability of the "deemer" provisions of Section 120.60, Florida Statutes, to Petitioner's second Petition is addressed in the conclusions of law set forth below.
At the final hearing, Petitioner presented testimony of nine (9) witnesses and thirty-four (34) exhibits. Respondent presented three (3) witnesses and ten
exhibits.
The final volume of the transcript of the final hearing was filed with the Division of Administrative Hearings on October 2, 1995. Proposed factual findings contained in proposed recommended orders filed by the parties were utilized in the preparation of this recommended order and are further addressed in the appendix to this recommended order.
FINDINGS OF FACT
Stipulated Facts
Facts set forth in paragraphs 1.-13., below, are agreed to by the parties.
The Petitioner in this matter, Racetrac Petroleum, Inc., owns a parcel of land in Hernando County, on the southwest corner of State Road 50 and Windmere Extension. The parcel is located east of the Interstate 75/State Road
50 interchange. Petitioner has constructed a service station and convenience store at that location.
State Road 50 has been classified as a Class 3 Road east of Interstate 75, with a posted speed limit of 45MPH. Interstate 75 is a limited access facility and the Interstate 75/State Road 50 interchange is a limited access interchange.
To the west of Petitioner's parcel, and closer to the Interstate 75 interchange, is a Texaco service station which abuts State Road 50 and has two driveways to State Road 50. The Texaco service station does not abut any other road or connection to State Road 50.
Abutting the east property line of Petitioner's parcel is a parcel that also abuts State Road 50 and on which a McDonald's restaurant is located. Along the common property line between the two parcels is a joint ingress and egress easement. This joint ingress and egress easement remains in effect as of this date.
At this time, there is a four-lane paved facility on the easement which is east of Petitioner's parcel and on McDonald's parcel. That facility currently provides the only vehicular route to and from State Road 50 for Petitioner's parcel, the McDonald's parcel and the parcel to the south.
The four-lane facility between Petitioner and McDonalds was originally constructed by McDonalds as a three-lane facility to serve its parcel, Petitioner's parcel and the parcel to the south. On December 16, 1992, during the construction of its service station and convenience store, Petitioner applied to Respondent DOT for a permit to modify the existing facility.
The December 16, 1992, permit application proposed to "modify existing driveway per the request of Hernando County (Increase existing radius from 25' + to 50)." DOT approved Permit No. A-08-92-0023 on February 19, 1993. Petitioner completed construction of a service station and convenience store on the parcel and modified the facility in accordance with DOT's Permit.
On June 15, 1993, Petitioner filed an application with DOT for an access connection permit to construct and operate a 28-foot wide right-in/right- out access connection to State Road 50, 185 feet west of the original driveway. The application was assigned Application No. A-08-93-0034P by DOT.
On July 12, 1993, DOT issued a Notice of Intent to Deny the application. The Notice of Intent to Deny stated that the application was being denied for the following four reasons:
Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003
Proposal falls to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l.
Reasonable access to the State Highway System is provided to the site via an existing "joint use" access located 185' east of the proposed access connection.
Proposed access connection may create safety and operational problems within the
operational sphere of the Limited Access Interchange.
The Notice of Intent to Deny also stated that Petitioner could appeal the intent to deny or submit a revised application within 30 days of receipt of the Notice.
On September 13, 1993, Petitioner submitted plans for a right-in only connection to State Road 50. Accompanying the plans was a supporting traffic study and a transmittal letter.
On October 7, 1993, DOT issued a letter which acknowledged receipt of the September 13, 1993, submittal and presented the following reasons why DOT's Notice of Intent to Deny would remain in effect:
Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003
Proposal fails to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l.
Reasonable access to the State Highway System is provided to the site via an existing easement located 185' east of the proposed access connection.
None of the original reasons for denial were addressed.
The Highway Capacity Software weave analysis in the Supplemental Traffic Report shows no benefit to the State Highway System.
The traffic count and turning movement
data indicate that the 4 lane facility is operating within capacity, thus showing that existing access is adequate.
There is a significant difference in the rate of deceleration for vehicle entering the proposed driveway (5.81 mph/s) and the existing driveway from the ramp end (4.36 mph/s). The deceleration rate for vehicles entering the proposed driveway exceeds 5.5 mph/s. This rate is described in the ITE Transportation and Traffic Engineering Handbook as reasonably comfortable for car passengers.
The proposed "Right In" geometry cannot reasonably accommodate WB-50 or WB-40 Vehicles.
The Radius of Return at the Windmere Road entrance is 50'. The radius was improved from 40' and can now accommodate WB-50 vehicles.
1O. The site entrance is located some 200' from SR 50. There is ample space for truck movements given the existing access.
The October 7, 1993, letter stated that DOT's Notice of Intent to Deny would remain in effect and that DOT would accept a response within eleven days of the receipt of the letter. The letter further stated that, if there was no response within eleven days, any future requests for connection would require a new application along with the applicable fee.
On October 21, 1993, Petitioner filed the first petition for a formal hearing, which was assigned DOAH Case No. 93-6932.
On December 15, 1994, Petitioner filed the second petition for a formal hearing, which was assigned DOAH Case No. 95-0248.
Other Facts
Petitioner's first interaction with DOT regarding access to State Road
50 resulted from meetings in late 1991 with DOT District 7 representatives. Access at the front of Petitioner's property, via a right-in/right-out driveway, was discussed during two or three meetings between representatives of the two parties.
Petitioner was advised at that time of DOT's position that the proposed connection with State Road 50 could not be approved due to safety concerns about the impact of the connection on the operation of the interchange ramp coming off the interstate and the auxiliary lane on State Road 50. Petitioner was advised that the only access would be that afforded by the Windmere Extension, the four-lane facility located on the property easement between Petitioner's parcel and McDonalds.
Windmere Extension is properly classified as a joint access connection to State Road 50. The pavement on the joint access easement terminates at the property lines of Petitioner and McDonalds with a barrier erected at the end of the drive.
On December 5, 1992, DOT issued a Notice of Conceptual Review Findings, stating the following reasons for the denial:
The proposed connection on State Road
50 encroaches into the merge lane from Inter- state 75;
The proposed connection does not meet the requirements to be located a minimum of 1320 feet from the terminus point of the taper from the interstate;
The frontage road immediately adjacent
to the parcel on the east is designed to provide access to the site.
Following receipt of the Notice of Conceptual Review Findings, Petitioner's representative applied again for a conceptual review in order to obtain direct affirmation that access would be afforded only via the Windmere Extension. DOT responded with a second denial specifically stating that access must be accomplished via Windmere Extension, the frontage road east of the property.
Thereafter, Petitioner closed on the purchase of the property, apparently satisfied that Windmere Extension afforded adequate vehicular access for a convenience store and gasoline station. Petitioner normally attempts to ascertain property access prior to purchase.
Petitioner's property is not properly classified as an isolated corner property under DOT's rules. Rather, Windmere Extension functions as a common access drive, as opposed to a road. It is the existence of Windmere Extension as an established access point for Petitioner that prevents the catagorization of Petitioner's property as an isolated corner property.
In 1992, during the development of Petitioner's parcel, Petitioner applied for and received a permit from DOT to perform modifications on the Windmere Extension. Petitioner's representative confirmed his understanding with DOT's District 7 representative that this permit would be the only driveway requested by Petitioner.
At the time of Petitioner's request for a permit to accomplish modifications to the Windmere Extension, McDonalds held an access permit for the Windmere Extension but was not made a party to the modification permit and has remained silent regarding the matter.
In spite of the previous confirmation of Petitioner's representative of access via Windmere Extension, Petitioner applied in June, 1993, following completion of construction of their facility, for direct access to State Road 50 via a right-in, right-out connection.
After denial of the requested right-in, right-out connection and prior to any request for formal administrative proceedings pursuant to Chapter 120, Florida Statutes, Petitioner requested the right-in connection on September 13, 1993. The request was filed subsequent to a conference between representatives of Petitioner and DOT which had been held to determine whether any basis existed upon which to mitigate denial of the requested right-in, right-out connection.
Immediately upon exiting from Interstate 75 on to State Road 50, the first business entity on the right hand side is a Texaco service station. The Texaco station is an older facility and continues to utilize its only access to State Road 50, both right-in and right-out exits.
Petitioner's proposed right-in only connection is less than 440 feet from Texaco's nearest driveway and is less than 440 feet from Windmere Extension.
The proposed right-in only connection is less than 440 feet from the end of the taper of the eastbound exit ramp from Interstate 75 on the south side of State Road 50. The ramp extends into an auxiliary lane that continues eastward on State Road 50 and ends just past Windmere Extension.
The purpose of the rule-required interval of 440 feet from the end of the taper of the exit ramp to the provision of an access point reflects a concern for safety. The spacing interval provides drivers exiting, in this case Interstate 75, with an opportunity to look rearward and pick a gap in through traffic and merge into the through lanes without the complication of also having to look forward to identify upcoming connections.
The end of the taper of the exit ramp must be ascertained in order to determine where the 440 feet interval begins. An appropriate way to make this determination is to observe vehicles using the auxiliary lane to merge into the through lanes of State Road 50. The majority of the traffic exiting Interstate
75 via the eastbound State Road 50 ramp merges to the through lanes in front of the Texaco station and establishes the "functional end of the taper" as just east of Texaco's easternmost driveway. At this point, most vehicles exiting Interstate 75 have completed their merging movements to the through lanes of State Road 50. This location is consistent with the standard taper rate used by DOT to design ramps.
The presence of a stoplight and a yield sign at the ramp for Interstate 75 and State Road 50 does not limit the influence of the interchange to the area west of the Texaco station. As established by observations made of vehicles entering the auxiliary lane from Interstate 75, most vehicles did not come to a stop at the yield sign before turning to the right and heading to the east. The area of influence of the interchange extends a considerable distance to the east.
The Texaco station is closer to the Interstate than Petitioner's property, but it has little observed traffic. No evidence was presented probative of any significant safety or operational problem for the interchange ramp or State Road 50 which is occasioned by the placement of the Texaco Station. Constructed in the early 1970's, the station predates DOT access management spacing standards. Connections constructed prior to the adoption of those access management standards are "grandfathered."
The Windmere Extension provides reasonably safe and efficient access to Petitioner's property on State Road 50. Observations support findings that petroleum product laden tankers are able to enter and exit the property, that passenger vehicles enter and exit without problems with their movements, and larger vehicles also enter and exit the property without backing traffic up onto the state highway.
The joint access connection at Windmere Extension provides sufficient access to reasonably serve needs of Petitioner's property. Traffic flows effectively between Petitioner's property and State Road 50 via the joint access connection. The Petitioner's gasoline station appears to be reasonably busy.
As documented by video tapes admitted in evidence, traffic is observed to be regularly entering and leaving the property. The station has been observed with all fueling stations occupied. Those occasional problems encountered with large vehicles on Petitioner's property appear to be susceptible to alleviation by on- site changes.
The layout for the State Road 50 location is pretty much a standard site plan for Petitioner's properties. Petitioner's store and gasoline pumps are generally located toward the front of the parcel, facing State Road 50.
At this time, the only function of the access connection at Windmere Extension is to provide vehicular access to the Petitioner and McDonald's parcels. As previously noted, a barrier marks the conclusion of Windmere Extension at the southern property boundary of the Petitioner and McDonalds parcels. No evidence was presented that development of the parcel to the south of these two businesses was impending. Absent development to the south, there is no reason to expect growth in traffic on Windmere Extension except due to growth of business for the Petitioner and McDonald's properties. Until development occurs, Windmere Extension will continue to provide reasonably safe and efficient access to Petitioner's property.
The right-in only access connection proposed by Petitioner would create an unsafe condition on State Road 50. Petitioner proposes to locate the connection in an auxiliary lane extending from an Interstate 75 exit ramp. Most motorists exiting the Interstate and heading east use that portion of the auxiliary lane to merge with eastbound traffic lanes while other motorists merge into the auxiliary lane in anticipation of turning right at Windmere Extension. Most of the traffic merging into through lanes complete that maneuver in front of the Texaco station, while motorists merging to turn right at Windmere Extension complete that maneuver at the proposed connection location.
The addition of the proposed right-in connection would cause some portion of the traffic currently turning right at Windmere to turn at the proposed connection, increasing conflicts between vehicles exiting Interstate 75 and accelerating into through lanes with those automobiles decelerating from State Road 50 in preparation for a right turn at Windmere Extension or the new proposed connection.
Drivers from State Road 50, intending to enter the new connection, would merge into the ramp/auxiliary lane in front of the Texaco station, right where the majority of drivers currently accelerate and merge out into State Road 50.
The simultaneous acceleration and deceleration of vehicles merging into and out of the auxiliary lane in front of the Texaco station would create a substantial safety problem for State Road 50. Distance would be shortened within which drivers must observe other traffic, pick their gap and merge into the other lane. Eastbound drivers exiting Interstate 75 to State Road 50 will be looking to the rear to pick their gaps as opposed to looking to those vehicles ahead in the auxiliary lane.
In addition, the proposed connection would create a safety problem for the substantial number of eastbound drivers that would not enter the new connection but would continue down the auxiliary lane to turn right at Windmere Extension to patronize McDonalds. Drivers exiting Interstate 75 that turn right at Windmere tend to remain in the auxiliary lane the entire time. These drivers will be behind slowing vehicles that are turning into the new connection. To escape the slowing vehicles, eastbound auxiliary lane drivers will tend to encroach into the through lane as they pass around the turning vehicles.
Similarly, eastbound State Road 50 drivers who normally merge into the auxiliary lane in front of the proposed connection will remain in the through lanes longer and either begin decelerating in the through lane, creating a speed differential in that lane, or will have to decelerate at an uncomfortable rate over a shorter distance in the auxiliary lane.
The short length or "throat" of the proposed connection, coupled with the need of turning vehicles to avoid other vehicles on the Petitioner site, pose additional safety problems. Larger vehicles, such as semi-trailers with a 50-foot wheelbase, recreational vehicles, and trucks towing trailers will have difficulty entering the site if other vehicles are moving in front of the pump islands or larger vehicles are parked at the pumps. Some semi-trailers entering the proposed driveway would have to pass under the edge of the canopy that overhangs the gasoline pumps in order to make a turn.
Similar difficulties can be expected when vehicles are maneuvering in the area between the pumps and State Road 50. Larger vehicles entering the proposed connection will have to slow or stop to avoid moving vehicles already on the property, creating an operational and safety hazard on State Road 50 as traffic queues in the connection. There is a greater likelihood that vehicles caught in a queue will back out onto State Road 50 at the proposed location than if they enter at Windmere.
Alternatively, the diversion of right-turning vehicles into the new connection would not significantly improve the safety of the intersection of State Road 50 and Windmere Extension. There are presently no significant conflicts between westbound vehicles turning left into Windmere Extension and right-turning vehicles. The westbound left-turning vehicles that are delayed by traffic are normally blocked by eastbound through traffic, rather than right- turning vehicles.
As set forth in an attachment to Petitioner's Exhibit 16 entitled Guidelines for Driveway Location and Design placement of connections within the functional area of an intersection is not advised. The location of the proposed connection is at about the end of the functional area of the Interstate 75 interchange, but the functional area of the State Road 50/Windmere intersection can be said to extend west of the proposed connection.
The current access arrangement is safer than the situation that arises after construction of the proposed connection.
Petitioner's September 13, 1993, submittal to DOT of a proposed right- in only connection was not a revised application under Rule l4-96.007(2)(b) but rather an informal proposal submitted as a result of a meeting between DOT and Petitioner's representatives.
Subsequent to DOT's denial of Petitioner's request for a right-in, right-out connection, Richard Peoples, Petitioner's vice-president in charge of site design, authorized the submission of the September 13, 1993 right-in only proposal and intended that both the original right-in/right-out proposal and the revised right-in proposal be "on the table." People's testimony at the final hearing to the effect that the second submission was meant to be a revised application is in conflict with his earlier deposition testimony that all offers were on the table. His final hearing testimony on this point is, accordingly, not credited. People's deposition testimony substantiates DOT's position that the second submission by Petitioner did not constitute the submission of a revised or amended application.
DOT's October 7, 1993, letter conveyed rejection of both the originally proposed right-in/right-out connection and the right-in only proposal. The letter acknowledges receipt of the drawings and the supporting traffic study associated with the second submittal. Several of the enumerated comments in the letter expressly reject or comment negatively on the contents of the September 13, 1993, submittal.
Subsequent to the issuance of the October 7, 1993, letter, Richard Baier, an employee of DOT charged with consideration of the connection application, had a telephone conversation with Petitioner's representative Lawrence Hagen and verbally advised him that DOT had rejected Petitioner's proposed right-in only connection. Hagen understood that the proposed right-in only connection had been rejected.
Petitioner's October 21, 1993, petition for formal hearing was filed
38 days after DOT received the September 13, 1993, submittal from Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
Petitioner asserts entitlement to a permit for a right-on only connection because DOT failed to grant or deny the "revised application" that Petitioner submitted on September 13, 1993. Under the version of DOT Rule 14- 96.007, Florida Administrative Code, in effect in 1993, an applicant for a connection permit may submit a "revised application" within 30 days of issuance of a Notice of Intent to Deny, in which case the applicant need not pay another application fee and DOT will act on the revised application within 90 days.
Petitioner contends that DOT did not grant or deny the "revised application" within 90 days of submission, thereby failing to comply with requirements of Section 120.60(2), Florida Statutes, which provides:
Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law.
The 90-day or shorter time period will be tolled by the initiation of a proceeding under s. 120.57 and will resume l0 days after the recommended order is submitted to the agency and the parties.
Any application for a license which is not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.
The proof establishes that Petitioner's September l3, 1993, submission was not a "revised application" under Rule 14-96.007, Florida Administrative Code. The second submission was an informal settlement offer in furtherance of a meeting held under Section 335.184(3)(c), Florida Statutes, which, in pertinent part, reads as follows:
An applicant whose permit has been denied may, within 7 days after the receipt of notification of such denial, request a meeting with department personnel to determine whether any means exist by which the reasons for denial of a permit may be mitigated so that the permit may be issued.
Petitioner's employee, Richard Peoples, authorized the submission and stated that his intent was to have both the original right-in/right-out proposal and the right-in only proposal "on the table." In view of the election to have all options considered by DOT, Petitioner is not considered to have submitted a revised application, but rather a second informal submittal with the reservation to revert to the original application.
Additionally, it should be noted that the September 13, 1993 submission was not submitted within 30 days after issuance of the Notice of Intent to Deny Petitioner's original application and did not, as a result, conform with Rule 14-96.007, Florida Administrative Code.
Should the September 13, 1993, submittal be considered a "revised application," it is determined that DOT satisfied the "deemer" provisions of Section 120.60(2), Florida Statutes, in two ways: DOT's October 7, 1993 letter constitutes a written denial of both applications and DOT employee Richard Baier also effectively communicated denial of the right-in proposal through an oral telephone notification to Petitioner's representative. The telephone conversation occurred within 90 days after the right-in only proposal was submitted. Such oral notice satisfies the deemer provisions of Section 120.60(2), Florida Statutes. State Department of Transportation v. Calusa Trace Development Corp., 571 So.2d 543 (Fla. 2d DCA 1990). DOT satisfied the requirements of Section 120.60(2), Florida Statutes.
Turning now to consideration of whether Petitioner's amended request for a right-in only connection should be granted or denied, it is recognized that this proceeding is governed by the Florida Transportation Code, provisions of the Access Management Act, Sections 335.18, Florida Statutes et seq., and Chapters 14-96 and 14-97, Florida Administrative Code.
Section 334.01, Florida Statutes, provides that Chapters 334-339, 341, 348 and 349 and Sections 332.003-332.007, 351.35, 351.36, 351.37 and 861.011 may be cited as the "Florida Transportation Code." The Transportation Code provides DOT with plenary authority to plan, design, construct and maintain a safe and efficient State Highway System. The purpose of the Transportation Code is stated in Section 334.035, Florida Statutes:
The purpose of the Florida Transportation Code
is to establish the responsibilities of the state, the counties, and the municipalities in the planning and development of the transportation systems serving the people of the state and to assure the development of an integrated, balanced statewide transportation system. This code is
necessary for the protection of the public safety and general welfare and for the preservation of all transportation facilities in the state. The
chapters in this code shall be considered components of the total code, and the provisions therein, unless expressly limited in scope, shall apply to all chapters. (emphasis supplied.)
Provisions of Sections 335.18 through 335.188, Florida Statutes, as denominated by Section 335.18, Florida Statutes, are to be known as the "Access Management Act." and, as referenced in Section 334.035, Florida Statutes, above, construed in accordance with provisions of the entire Transportation Code.
The Access Management Act reflects the legislature's concern with the safety and efficiency of the state highway system. Section 335.181 provides in part:
It is the finding of the Legislature that:
Regulation of access to the State Highway System is necessary in order to protect
the public health, safety, and welfare, to preserve the functional integrity of the State Highway System, and to promote the safe and efficient movement of people and goods within the state.
The development of an access management program, in accordance with this act, will assist in the coordination of land-use planning decisions by local governments with investments in the State Highway System and will serve to enhance managed growth and the overall development of commerce within the state as served by the State Highway System. Without such a program, the health, safety, and welfare of the residents of this state may be placed at risk, due to the fact that unregulated access to the State Highway System is one of the
contributing factors to the congestion and functional deterioration of the system.
The Legislature further finds and declares that the development of an access management program in accordance with this act will enhance the development of an effective transportation system and increase the traffic-carrying capacity of the
State Highway System and thereby reduce the incidences of traffic accidents, personal injury, and property damage or loss; mitigate environmental degradation; promote sound economic growth and the growth manage- ment goals of the state; reduce highway maintenance costs and the necessity for costly traffic operations measures; lengthen the effective life of transportation facilities in the state; prevent delays in public evacuations for natural storms and emergencies;
enhance disaster-response readiness; and shorten response time for emergency vehicles.
While this provision reflects an expectation that the development of an effective transportation system with increased traffic carrying capacity will further the goal of enhanced economic and managed growth, the predominant purpose of the Access Management Act is to protect the public health, safety, and welfare and promote the safe and efficient movement of people and goods within the state.
The Access Management Act was amended in 1992 in many substantive ways. However, the Act's primary focus remains on a safe and efficient highway system. As the applicant for an access connection permit, Petitioner has the burden to show that the proposed connection is necessary to provide reasonable access to State Road 50 for its property. Florida Department of Transportation
v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA, 1981). To the extent that Petitioner's property is already served by a connection to State Road 50, Petitioner has the burden to demonstrate that the existing connection does not provide reasonable access.
The right of reasonable access is accomplished by means, such as a driveway, which permit vehicles to travel from a property to the highway and vice versa. Under Section 335.182(3)(a), Florida Statutes, a connection is defined as a means of providing for the "right of reasonable access."
Section 334.03(21), Florida Statutes, defines the "right of access" as the "right of ingress to a highway from abutting land and egress from a highway to abutting land."
While the "right of reasonable access" is the right to travel from abutting property to a state highway and vice-versa in a reasonable manner, the definition of "right of access" under Section 334.03(21) does not necessarily mean entitlement to a driveway at the front of Petitioner's property.
The Access Management Act, does not restrict DOT's authority to "consider" joint access as reasonable access. DOT is only precluded from mandating that a property owner negotiate joint access with a neighbor. Section 335.181(2)(b), and Section 335.185(1), Florida Statutes. The reasonableness of access is a matter of the needs of the property and the characteristics of the highway.
The joint access easement over Windmere Extension exhibits all of the attributes of a "connection" under Section 335.182(3)(a), Florida Statutes. It provides a means for "ingress to a highway from abutting land and egress from a highway to abutting land."
The current configuration and function of Windmere Extension is that of a private joint access connection for the Petitioner and McDonald properties. No functional access is being provided to the undeveloped property to the south and it is unlikely that Hernando County would accept title to the easement until Windmere Extension is extended to the south to serve that undeveloped land.
Petitioner's application for a connection to State Road 50 at the front of its property is an application for a second access connection to that road. The connection via the joint access easement at Windmere Extension is a connection to State Road 50 and provides vehicular ingress and egress between Petitioner's property and State Road 50.
Section 335.181(2), Florida Statutes, provides that every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway; that the access rights of an owner of property abutting the State Highway System are subject to reasonable regulation to ensure the public's interest in a safe and efficient highway system; and that DOT may not deny a means of reasonable access to an abutting state highway except on the basis of safety or operational concerns as provided in Section 335.184, Florida Statutes.
As Windmere Extension is an access connection to State Road 50, Petitioner's basic entitlement to a connection to the State Highway System has been satisfied. Section 335.184(3), Florida Statutes, provides that a property owner shall be granted a permit for an access connection to the abutting state highway unless the permitting of such access connection would jeopardize the safety of the public or have a negative impact on the operational characteristics of the highway. Provisions of this statute have been met.
The "right of reasonable access" is an acknowledged property right that does not require the ability to cross directly from the front of abutting property onto the highway. The courts have recognized that the ability to obtain reasonable access through indirect means can be considered "reasonable access." Petitioner's argument that a joint access easement could not be reasonable access under the Act was rejected in a Final Order issued in Racetrac Petroleum Inc. vs. Department of Transportation, DOAH Case No. 94-6741RP, issued April 23, 1995. In that case, the Hearing Officer held:
There can be no quarrel with the concept that every abutting land owner has a right to reasonable access to the abutting state highway. Where Petitioner and [DOT] disagree is in that Petitioner seeks to have "reasonableness" equate with "direct". The primary consideration must be the safe and efficient operation of the state highways. Consistent with that may be the requirement for access to a particular highway
at a particular point to be indirect. If indirect access can be shown to be safer than direct access in a given situation, and that indirect access is reasonable, then the statutory guarantee is met, especially when the statute itself gives [DOT] the authority to require a property to access a state highway from a service road. Petitioner's argument here is without merit. See Palm Beach County v.
Tessier, 538 So.2d 846 (Fla. 1989); Weir v. Palm
Beach County, 85 So.2d 865 (Fla. 1956).
The Windmere Extension provides reasonable access to State Road 50 for Petitioner's property. Therefore, Petitioner has failed to show an entitlement to its proposed connection, regardless of the safety impact of the proposed connection. However, the record also shows that Petitioner's proposed connection would jeopardize the public safety and have an adverse affect on the operation of State Road 50 and the ramp/auxiliary lane from 1-75. Thus, even if access via Windmere Extension had been shown to be less than reasonable, the Access Management Act requires that the application be denied.
To the extent that Petitioner seeks additional access to that provided by Windmere Extension, the proposed connection must meet DOT access management standards. Section 335.184(3), Florida Statutes, requires that each access connection be based upon standards and criteria adopted, by rule, by DOT.
DOT's access management standards are stated primarily in the form of spacing standards. Rule 14-97.003, Florida Administrative Code, prescribes two spacing standards that are applicable in this case. The first is set forth in Rule 14-97.003(l), Florida Administrative Code, which prescribes a minimum spacing of 440 feet between connections. This spacing standard applies to the distance between the proposed connection and the nearest Texaco driveway. As the distance between the proposed driveway and the Texaco driveway is less than
440 feet, the proposed connection does not meet the Department's access management standard in that regard.
DOT contends that the 440-foot spacing standard also applies to the distance between the proposed connection and Windmere Extension, while Petitioner contends that its property is an "isolated corner property" and falls under the shorter 75-foot spacing standard of Rule 14-97.003(1)(i)4, Florida Administrative Code. Given the current configuration of Windmere Extension, it is not appropriate to classify Petitioner's property as an isolated corner property. Windmere Extension functions as a joint access connection for the Petitioner and McDonalds.
The second spacing standard is set forth in Rule l4-97.003(l)(j), Florida Administrative Code. State Road 50 is a controlled access road, under Rule 14-97.002(7), Florida Administrative Code, beyond the limits of the 1- 75/State Road 50 interchange. Rule 14-97.003(1)(j), Florida Administrative Code, provides connections on a controlled access facility within one-quarter mile of a limited access interchange shall be protected to protect the safety and integrity of the limited access facility and the interchange area.
Rule 14-97.003(l)(j), Florida Administrative Code, prescribes a minimum spacing standard of 440 feet from the end of a limited access interchange ramp. The 1-75/State Road 50 interchange is a limited access interchange within the meaning of Rule 14-97.003(1)(j), Florida Administrative Code, and the eastbound exit ramp from 1-75 to State Road 50 in that interchange is a ramp within the meaning of Rule 14-97.003(l)(j). Although the design of the ramp does not provide a physical taper that can be readily identified, such a taper must exist in order to provide the protection intended by the spacing standard in the rule.
The purpose of the spacing standard in Rule 14-97.003(l)(j), Florida Administrative Code, is to permit drivers exiting a limited access highway an opportunity to look to the rear and pick a gap in through traffic before the need to look for upcoming connections. Therefore, it is appropriate to rely on observed driver behavior to identify the functional end of the taper of the ramp. Observing where drivers actually merge out of the lane provides a practical point of reference that serves the purpose of the rule.
The record shows that the functional end of the taper of the eastbound exit ramp from 1-75 to State Road 50 is at the eastern end of the eastern Texaco driveway. Petitioner's proposed connection is less than 440 feet from this point and does not meet DOT's access management standard under the rule.
The fact that Texaco has driveways that do not meet this standard does not negate application of DOT's standards to Petitioner's proposed connection. The Texaco connections predate the Access Management Act by over ten years and are "grandfathered" under Section 335.187 and the Department's rules. Whatever the reaction may be with regard to the existing Texaco connections, the additional impact of Petitioner's connection would be a significant safety impediment.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's applications.
DONE and ENTERED this 27th day of October, 1995, in Tallahassee, Florida.
DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995.
APPENDIX
In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.
Petitioner's Proposed Findings 1.-3. Accepted.
4.-7. Rejected, subordinate to HO findings.
Accepted.
Rejected, hearsay.
Rejected, not supported by weight of the evidence.
Accepted.
Rejected, absence of direct evidence.
13.-17. Rejected, not dispositive of material issues presented.
Accepted, not verbatim.
Rejected, subordinate to HO findings. 20.-21. Rejected, not materially dispositive.
22. Accepted.
23.-25. Rejected, not dispositive of material issues.
26. Rejected, not supported by the weight of the evidence.
27.-28. Rejected, relevance.
29.-30. Rejected, subordinate to HO findings.
31. Accepted.
32.-33. Rejected, subordinate, relevance.
34. Rejected, not supported by weight of the evidence. 35.-36. Rejected, subordinate to HO findings.
Accepted, but not verbatim.
Rejected, not supported by weight of the evidence.
Accepted, not verbatim.
Rejected, subordinate to HO findings.
Rejected, legal argument.
Rejected, subordinate to HO findings.
Rejected, not supported by weight of the evidence.
Rejected, subordinate to HO findings.
45.-48. Rejected, not supported by weight of the evidence.
49. Accepted.
50.-51. Rejected, subordinate to HO findings.
52.-56. Rejected, not supported by weight of the evidence. 57.-59. Rejected, subordinate to HO findings.
60. Rejected, weight of the evidence.
Respondent's Proposed Findings 1.-14. Accepted.
Rejected, redundant.
Accepted.
17.-20. Rejected, unnecessary.
21.-57. Accepted in substance, but not verbatim.
COPIES FURNISHED:
Paul Sexton
Assistant General Counsel Department of Transportation 605 Suwannee Street
Tallahassee, FL 32399-0450
John H. Beck
J. Victor Barrios Ellen Chadwell Attorneys at Law Beck Spalla et al.
1026 East Park Avenue Tallahassee, FL 32301
Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation
Haydon Burns Building, M.S. #58 605 Suwannee Street
Tallahassee, FL 32399-0450
Thornton J. Williams, Esquire Department of Transportation 605 Suwannee Street
562 Haydon Burns Building Tallahassee, FL 32399-0450
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Dec. 05, 1995 | Final Order filed. |
| Oct. 27, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held August 10 and 24-25, 1995. |
| Oct. 13, 1995 | Letter to DWD from P. Sexton (RE: filing error in department`s proposed recommended Order) filed. |
| Oct. 12, 1995 | Agency`s Proposed Findings of Fact and Conclusions of Law filed. |
| Oct. 12, 1995 | (Joint) Proposed Recommended Order filed. |
| Oct. 03, 1995 | (Petitioner) Agreed Motion to Set Time for Filing Proposed Orders filed. |
| Oct. 02, 1995 | Transcript (Volume 5, Tagged) filed. |
| Sep. 19, 1995 | CASE STATUS: Hearing Held. |
| Sep. 12, 1995 | Volume 1 through 4 (Transcript) filed. |
| Aug. 30, 1995 | Order Continuing Hearing to Date Certain sent out. (hearing rescheduled for 9/19/95; 9:30am; Tallahassee) |
| Aug. 22, 1995 | Department's Second Revised Prehearing Statement filed. |
| Aug. 21, 1995 | (Joint) Statement of Agreed Facts filed. |
| Aug. 16, 1995 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 15, 1995 | Petitioner`s Notice of Filing Exhibit List filed. |
| Aug. 15, 1995 | (Petitioner) (3) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 10, 1995 | Affidavit of Richard Baier filed. |
| Aug. 09, 1995 | (Petitioner) Motion to Strike Defendant`s Revised Prehearing Statement filed. |
| Aug. 08, 1995 | Department`s Revised Prehearing Statement; Notice of Production of Evidence at Trial; Petitioner`s Prehearing Statement filed. |
| Aug. 08, 1995 | Order sent out. (ruling on Motions) |
| Aug. 08, 1995 | Petitioner`s Motion to Strike the Department`s Motion in Limine; Petitioner`s Motion in Limine filed. |
| Aug. 07, 1995 | Department`s Motion In Limine filed. |
| Aug. 07, 1995 | Department`s Motion for Continuance filed. |
| Aug. 04, 1995 | Department`s Objections to New Expert Witness filed. |
| Aug. 04, 1995 | (Petitioner) Motion to Add Expert Witness and Response to Department`s Objection to New Expert Witness; Notice of Telephonic Hearing filed. |
| Aug. 01, 1995 | Department`s Response to Request to Produce filed. |
| Jul. 18, 1995 | Petitioner`s Request to Produce filed. |
| Feb. 14, 1995 | Order Granting Continuance and Providing New Notice of Final Hearing sent out. (hearing rescheduled for August 10-11, 1995; 9:30am; Tallahassee) |
| Feb. 13, 1995 | Joint Motion for Continuance filed. |
| Feb. 13, 1995 | Joint Motion for Continuance filed. |
| Jan. 31, 1995 | Order of Consolidation sent out. (Consolidated cases are: 93-6932, 95-248) |
| Jan. 20, 1995 | (Petitioner) Motion to Consolidate (with DOAH Case No/s. 93-6932 & 95-0248) filed. |
| Jan. 04, 1995 | Order Deferring Ruling On Consolidation and Providing Notice of Final Hearing sent out. (hearing set for 3/29/95; 9:30am; Tallahassee) |
| Dec. 19, 1994 | (Petitioner) Notice Of Related Cases; Letter to S. Smith from J. Barrios (Re: Notice of Related Cases) filed. |
| Dec. 16, 1994 | (Petitioner) Notice Of Related Cases; Petition for Administrative Hearing filed. |
| Dec. 15, 1994 | (Petitioner) Motion to Consolidate (with DOAH Case No/s. 93-6932, 94-6741) filed. |
| Dec. 15, 1994 | (Petitioner) Motion for Case Management Conference; Status Report w/exhibits filed. |
| Oct. 11, 1994 | Transcript (Motion Hearing/tagged) filed. |
| Oct. 03, 1994 | Order sent out. (Parties to file status report by 12/15/94) |
| Oct. 03, 1994 | Petitioner`s Motion to Abate filed. |
| Sep. 30, 1994 | Notice of Taking Deposition Duces Tecum filed. (From Paul Sexton) |
| Sep. 30, 1994 | (Petitioner) Notice of Hearing On All Motions filed. |
| Sep. 30, 1994 | (Respondent) Motion to Strike Witness List and Motion in Limine filed. |
| Sep. 30, 1994 | Petitioner`s Motion in Limine filed. |
| Sep. 30, 1994 | Petitioner`s Prehearing Statement filed. |
| Sep. 30, 1994 | Petitioner`s Motion To Continue filed. |
| Sep. 29, 1994 | Department`s Motion to Amend Stated Reasons for Denial filed. |
| Sep. 29, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Sep. 28, 1994 | Respondent`s Prehearing Statement; Notice of Taking Deposition Duces Tecum filed. |
| Sep. 26, 1994 | Order Denying Motion for Continuance sent out. (Motion denied) |
| Sep. 26, 1994 | (Petitioner) Compliance With Paragraph. 1(e) of Order of Prehearing Instruction filed. |
| Sep. 26, 1994 | Department`s Response to Motion for Reconsideration and Renewed Motion for Continuance filed. |
| Sep. 26, 1994 | Order Denying Motion for Continuance sent out. (Motion DENIED) |
| Sep. 23, 1994 | (Petitioner) Motion for Reconsideration and Renewed Motion for Continuance filed. |
| Sep. 22, 1994 | (Respondent) Response to Motion to Abate Administrative Proceeding filed. |
| Sep. 21, 1994 | (Petitioner) Motion to Abate Administrative Proceedings and Continue Hearing filed. |
| Sep. 08, 1994 | Notice of Serving Answers to Respondent`s Interrogatories filed. (From J. Victor Barrios) |
| Aug. 08, 1994 | (Respondent) Certificate of Service filed. |
| Jul. 25, 1994 | Order Denying Motion to Abate and Set Aside Previous Order; and Order Denying Motion for More Definite Statement sent out. (Motions denied) |
| Jul. 13, 1994 | (Respondent) Response to Motion to Abate Administrative Proceeding and Motion for More Definite Statement w/attached Complaint filed. |
| Jul. 08, 1994 | (Petitioner) Motion to Abate Administrative Proceeding and to Set Aside Order Providing Notice of Final Hearing and Scope of Hearing Issues filed. |
| Jun. 29, 1994 | Order Providing Notice of Final Hearing and Scope of Hearing Issues sent out. (hearing set for 10/4/94; 9:30; Tallahassee) |
| Jun. 23, 1994 | (Respondent) Response To Written Status Report and Motion To Establish Scope of Proceeding filed. |
| Jun. 20, 1994 | (Petitioner) Written Status Report in Compliance With Order Abating Further Proceedings filed. |
| Apr. 19, 1994 | Order Abating Further Proceedings and Requiring Response From the Parties sent out. (Parties to file status report by 5:00pm on 6/20/94) |
| Apr. 15, 1994 | (Petitioner) Notice of Hearing; Motion for Continuance filed. |
| Apr. 08, 1994 | (Petitioner) Response to Respondent`s First Request for Admissions by Petitioner filed. |
| Apr. 05, 1994 | (Respondent) Notice of Taking Telephonic Deposition Duces Tecum; Notice of Taking Deposition Duces Tecum filed. |
| Mar. 23, 1994 | (Respondent) Notice of Taking Telephonic Deposition Duces Tecum filed. |
| Mar. 18, 1994 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 14, 1994 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 4/20/94; 9:30am; Brooksville) |
| Mar. 07, 1994 | Respondent`s First Request for Admissions by Petitioner filed. |
| Feb. 18, 1994 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 4/20/94; 9:30am; Tallahassee) |
| Jan. 12, 1994 | Order of Prehearing Instructions sent out. |
| Jan. 12, 1994 | Amended Notice of Hearing sent out. (hearing set for 2/23/94; 11:00am; Brooksville) |
| Jan. 03, 1994 | Notice of Hearing sent out. (hearing set for 2/23/94; 10:00am; Tallahassee) |
| Dec. 20, 1993 | Joint Response to Initial Order filed. |
| Dec. 14, 1993 | Letter to SLS from V. Barrios re: 12-6-93 ltr from P. Sexton; Notice of Intent filed. |
| Dec. 14, 1993 | Ltr. to DWD from P. Sexton (re: reply to 12-10-93 ltr from M. Barrios) filed. |
| Dec. 10, 1993 | Initial Order issued. |
| Dec. 07, 1993 | Agency referral letter; Notice of Intent; Agency Action letter; Request for Administrative Hearing, letter form; Petition filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 30, 1995 | Agency Final Order | |
| Oct. 27, 1995 | Recommended Order | Denial of access application was communicated, plus access sought is not reasonable under existing circumstances. Deny access application. |
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DEPARTMENT OF TRANSPORTATION vs JOHN J. CURRAN, 93-006932 (1993)
