STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE FORREST, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4356

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings (Division), held a formal hearing in these matters on September 19, in Bradenton, Florida.

APPEARANCES

For Petitioner: John F. Johnson, III, Esquire

Blalock, Landers, Walters and Vogler, P.A. Post Office Box 469

Bradenton, Florida 34206

For Respondent: Francine M. Ffolkes, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

1. Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B?

   
   

2. Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?

PRELIMINARY STATEMENT

By a Notice Of Intent To Deny A Connection Permit dated June 29, 1994, the Department advised Petitioner of its intent to deny Petitioner's permit application numbers C-13-021-93 and C-13-022-93 on the basis that: (1) the connection permit applicant has not received local government development approval; and (2) the truck plaza is located on two adjacent sites (site A to the south and site B to the north) in the interchange of S R 45 and S R 55 and

trucks entering and exiting the truck plaza will create safety hazards in this interchange On August 1, 1994, Petitioner filed a Petition To Review Notice Of Intent To Deny Connection Permit And For Formal Hearing. By letter dated August 3, 1994, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of a Hearing Officer and conduct of a hearing.

At the hearing, Petitioner presented the testimony of Arjang Ezazi and Ted

F. Links. Petitioner's exhibits 1 through 6, 8, 9, 11, 12, 13, 16 and 17 were received as evidence, Petitioner's exhibits 7, 10, 14 and 15 were identified but were not moved into evidence by the Petitioner. The Department presented the testimony of John Wright and Michael J. Tako. The Department's exhibits 1 through 4 were received as evidence.

The Department made an ore tenus motion to dismiss Petitioner's challenge to the Department's denial of Connection Application for permit number C-13-022-

93 on the basis that there were no disputed issues of material fact to be litigated. After reviewing the record, the issue of reasonable safe access connections for site A was still a disputed issue at the time of the hearing. Therefore, the motion is denied.

A transcript of this proceeding was filed with the Division on October 10, 1995. Upon an unopposed motion filed by Petitioner, the parties were granted an extension of time within which to file their respective Proposed Recommended Orders, with the understanding that any time constraint for the entry of a Recommended Order imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code.

Subsequently, Petitioner filed an unopposed Motion To Abate on the grounds that the parties were involved in negotiations in an attempt to settled this matter. The motion was granted and the matter placed in abeyance The parties were unable to reach a settlement in this matter and therefore, were ordered to submit proposed findings of fact and conclusions of law by July 1, 1996.

Subsequently, upon an unopposed motion filed by the Department, the parties were granted an extension of time until July 26, 1996, to file their respective proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act.

   
   

2. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B.

   
   

3. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic.

4. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks.

   
   

5. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development.

   
   

6. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge.

   
   

7. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks.

   
   

8. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West.

   
   

9. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers.

   
   

10. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B.

    
    

11. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass.

    
    

12. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately

    30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S

    19 southbound traffic.

    
    

13. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint.

    
    

14. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19

    before it merges with southbound U S 41. A left in, left out driveway is proposed at this location.

    
    

15. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange.

    
    

16. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange.

    
    

17. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents.

    
    

18. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange.

    
    

19. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents.

    
    

20. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway.

    
    

21. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions.

    
    

22. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange.

    
    

23. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be

    violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange.

    
    

24. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange.

    
    

25. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Sections 120.57(1) and 335.184(3)(d), Florida Statutes.

    
    

27. Section 334.044(14), Florida Statutes, provides:

    
    

    The department shall have the following general powers and duties:

    * * *

    (14) To establish, control, and prohibit points of ingress to, and egress from, the State Highway System, the turnpike, and other transportation facilities under the department's jurisdiction as necessary [to ensure the safe, efficient, and effective

    maintenance and operation of such facilities]. [Emphasis supplied]

    
    

28. Section 335.182(1), Florida Statutes, provide:

    
    

    1. Vehicular access and connections to or from the State Highway System shall be regu- lated by the department in accordance with

       the provisions of this act in order [to protect the public health, safety, and welfare]. [Emphasis supplied]

       
       

29. Section 335.184(3), Florida Statutes, in pertinent part provides:

    
    

    The review process for access permit applications made by the department shall be as follows:

    * * *

    (3) 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 upon the operational characteristics of the highway]

    . . . . .[Emphasis supplied]

30. Section 335.187(5) Florida Statutes, provides:

    
    

    (5) [A means of reasonable access] to an abutting state highway [may not be denied] to a property owner, [except on the basis

    of safety or operational concerns as provided in s. 335.184]. [Emphasis supplied]

    
    

31. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Therefore, the burden was on Petitioner Ronnie Forrest to establish facts by a preponderance of the evidence to show that the operation of the proposed access connections would not jeopardize the safety of the public or have a negative impact upon the operational characteristics of the highways comprising this interchange, or that there were other reasonable access connections available for the proposed sites which would not jeopardize the safety of the public or have a negative impact upon the operational characteristics of the highways comprising this interchange. Petitioner has failed to sustained his burden in this regard.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93.

RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE, 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 16th day of August, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25.

Department's Proposed Findings of Fact.

1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25.

COPIES FURNISHED:

Charles F. Johnson, Esquire

Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469

Bradenton, Florida 34206

Francine M. Ffolkes, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Thornton J. Williams General Counsel Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 94-004356

Orders for Case No: 94-004356