STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PETER V. EREG, et al., )
)
Petitioners, )
and )
) SAVE ANNA MARIA, INC. and )
ROBERT E. VANWAGONER, ) CASE NO. 94-4634
)
Intervenors, )
)
vs. )
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Sarasota, Anna Maria, and Bradenton Beach, Florida, on December 4-14, 1995, and January 8-10, 1996.
APPEARANCES
For Petitioners and David M. Levin Intervenor Save Anna Icard Merrill
Maria, Inc.: 2033 Main Street, Suite 600 Sarasota, Florida 34237
For Intervenor Robert E. VanWagoner, pro se Robert E. VanWagoner: Post Office Box 4121
Anna Maria, Florida 34216
For Respondent Paul Sexton
Department of Chief, Administrative Law Transportation: Department of Transportation
Haydon Burns Building
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0458
Francine Ffolkes Assistant General Counsel
Department of Transportation Haydon Burns Building
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUES
The issues in this case are whether the Department of Transportation abused its discretion in deciding to replace an existing drawbridge with a fixed-span, high-level bridge and whether the Department of Transportation violated the statutory requirement of public hearings with effective public participation prior to selecting, siting, and designing the fixed-span, high-level bridge.
Prior to referring this matter to the Division of Administrative Hearings, the Department of Transportation determined as a matter of law that Petitioners lacked standing to challenge the Florida Transportation Plan. The Department of Transportation therefore declined to refer to the Division Petitioners' challenge to the Florida Transportation Plan. For this reason, the recommended order does not address the issue whether the Florida Transportation Plan appropriately includes the proposed bridge or whether the Department of Transportation correctly determined that Petitioners lacked standing to raise this issue.
PRELIMINARY STATEMENT
By Petition for Formal Hearing dated January 4, 1994, Petitioners Peter V. Ereg, Elizabeth S. Ereg, Barbara L. Lacina, Herbert W. Warner, Christine D. Abram, and Bunny L. Garst alleged that the Department of Transportation did not comply with Sections 339.155(6)(a), (b), and (c) in planning to demolish the Anna Maria Island Bridge and replace it with a fixed-span, high- level bridge.
The petition alleges that the Department of Transportation did not conduct hearings prior to the selection of the proposed bridge, prior to the selection of the site or corridor of the proposed bridge, and prior to the selection of a specific design for the proposed bridge. The petition alleges that the Department of Transportation did not provide an opportunity for effective public participation in the planning, site and route selection, and design of the proposed bridge.
The petition alleges that the Department of Transportation failed to consider all of the factors required to be considered under Section 339.155(2). The petition alleges that the proposed bridge would harm the environment by destroying three to four acres of seagrass, generating hazardous stormwater runoff, and destroying a large number of mangroves. The petition alleges that the height of the proposed bridge would be dangerous due to the greater likelihood of bridge closures necessitated by high winds at such a height. The petition alleges that the proposed bridge would increase traffic congestion on Anna Maria Island.
The petition challenges the public hearings held by the Department of Transportation by alleging that it failed to consider public safety, alternative proposals, environmental impacts, and stormwater runoff. The petition alleges that the Department of Transportation failed to comply with the public-hearing requirements of Section 339.155(6).
The petition asks for an order setting aside the decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge because of the
failure of Florida Department of Transportation to comply with all necessary hearings and notices concerning hearings and the content thereof and all other factors which show the Bridge to be
unsafe and an environmental hazard and also that all alternatives have not been fully explored.
By Order to Show Cause entered June 7, 1994, the Department of Transportation ordered Petitioners to show cause why their petition should not be dismissed. The Order states that the Department of Transportation intends to replace the Anna Maria Island Bridge. The Order notes that the Department of Transportation had abated an earlier petition dated June 30, 1993, to conduct on October 26 and 27, 1993, two "additional public hearings on the design of the proposed replacement bridge" and, on November 12, 1993, had dismissed the earlier petition.
The Order to Show Cause explains that Section 339.155, Florida Statutes (1993), sets forth the procedural and substantive requirements for planning transportation facilities. Quoting Section 339.155(6) in its entirety, the Order states that these requirements "govern the notice, location, and conduct of hearings for the Florida Transportation Plan and hearings on specific facilities, sites, and designs."
Noting that Section 339.155(2) pertains to the Florida Transportation Plan, the Order to Show Cause concludes that "the act of adopting or amending . . . the Florida Transportation Plan does not itself affect any person with sufficient immediacy so as to affect their 'substantial interests.'" The Order adds that the Florida Transportation Plan "serves as the framework for the 'specific project plans' that are independently developed under separate public notice and hearing provisions." The Order concludes that Petitioners lack standing to challenge the Florida Transportation Plan, to the extent their petition attempts to do so.
The Order to Show Cause details the public-hearing requirements for specific project plans. The Order states:
Section 339.155(6)(b) provides for the development of "specific project plans" and requires public hearings for: 1) selection of the facility; 2) selection of the location of the facility site or corridor; and 3) selection and commitment to a specific design for the facility.
The Order acknowledges the statutory notice requirements imposed on design public hearings, as distinguished from facility-type and site hearings:
While Section 339.155(6)(b) imposes no specific notice requirement for facility or location hearings, Section 339.155(6)(c) requires personal notice of design hearings must be provided to all persons whose property lies in whole or in part within 300 feet on either side of the center line of the proposed facility and to those persons who the Department determines will be substantially affected environmentally, economically, socially, or safetywise.
The Order to Show Cause declares: "There is no need for facility or location hearings when the replacement of an existing facility, such as a small bridge, is being planned, as the facility and site already exist. In such
situations, only a design hearing is required." The Order notes that the Department of Transportation held such a hearing for the proposed bridge.
Due to the elaborate notice and hearing requirements of Section 339.155(6)(c), the Legislature apparently intended, the Order reasons, that "design hearings held under Section 339.155(6)(c) be the exclusive administrative forum for public participation in the Department's development of 'specific project plans.'"
Thus, the Order to Show Cause concludes, "a property owner who had an opportunity to participate in a design hearing held pursuant to Section 339.155(6)(c) may not thereafter seek another administrative hearing pursuant to Section 120.57, Florida Statutes, on the same subject." The Order adds:
Similarly, a person may not seek a hearing pursuant to Section 120.57 on the issue of whether the Department had met the procedural or substantive requirements of Section 339.155(6)(c). Petitioners' remedy, if any, lies elsewhere. Since Petitioners seek a hearing on the issue of the Department's procedural and substantive compliance with the requirements of Section 339.155(6)(c), their Petition should be denied.
Petitioners filed a Response to Order To Show Cause dated June 20, 1994. Petitioners asserted that Chapter 339 differentiates between hearings on the Florida Transportation Plan and hearings on the development of specific project plans.
Petitioners objected to the Department of Transportation's conclusion that they had no standing to challenge the Florida Transportation Plan. The response argues that Section 120.535 requires the Department of Transportation to adopt rules depriving persons of standing to challenge the Florida Transportation Plan, a formal administrative hearing when they had a chance to participate in a design hearing, and a formal administrative hearing to challenge whether the Department of Transportation met the procedural or substantive requirements of Section 339.155(6)(c).
Petitioners disagreed with the Department of Transportation's conclusion that the proposed bridge project required only a design hearing or that Section 339.155(6)(c) provides the exclusive forum for public participation.
Petitioners claimed that nothing in the law precludes them from requesting a formal administrative hearing under Section 120.57.
Petitioners also filed a Motion to Amend Petition for Formal Hearing dated June 20, 1994. The amendment adds allegations about standing. The amendment alleges that the proposed bridge conflicts with Executive Order No. 81-105, which prohibits the use of State funds in coastal barrier projects, unless the coastal area can accommodate growth, there is a need and desire for economic development, or the potential danger to human life and property from natural hazards is minimal.
The amendment asserts that the proposed bridge is not consistent with ten criteria of the state comprehensive plan. These criteria are promoting the rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction; promoting timely resurfacing and repair of
roads and bridges to minimize costly reconstruction and to enhance safety; avoiding transportation improvements that encourage or subsidize increased development in coastal high- hazard areas or identified environmentally sensitive areas such as wetlands, floodways, or productive marine areas; maintaining as one of the State's primary economic assets the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resources; requiring local governments, in cooperation with regional and State agencies, to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters; avoiding the expenditure of State funds to subsidize development in coastal
high-hazard areas; encouraging land and water uses that are compatible with the protection of sensitive coastal resources; protecting and restoring long-term productivity of marine fisheries, habitat, and other aquatic resources; encouraging citizen participation at all levels of policy development, planning, and operations; encouraging the continual cooperation among communities that have a unique natural area to bring the private and public sectors together for establishing an orderly, environmentally and economically sound plan for future needs and growth.
The amended petition alleges that the proposed bridge is inconsistent with similar provisions of the comprehensive plan of the City of Holmes Beach.
By Order Referring Case for Hearing entered August 16, 1994, the Department of Transportation determined that Petitioners do not have standing to challenge the Florida Transportation Plan. The Order refers to the Division of Administrative Hearings the challenge to the Department of Transportation's compliance with Section 339.155(6) "with regard to the reasonableness and legality of the design of the replacement bridge, as well as the requirement to hold hearings on the corridor to be selected, the facility to be constructed and the final design of the facility."
The Department of Transportation referred the petition to the Division for further consideration of the issue of whether
Petitioners may request an administrative
hearing to review Department's planning decisions under Section 339.155(6), Florida Statutes, as well as whether Petitioners themselves are substantially affected by the Department's actions they seek to challenge.
The Order Referring Case for Hearing adds:
Should the Division determine that one or more of the Petitioners may challenge the design of the bridge or the requirement to hold corridor, facility and design hearings, the final hearing in this matter will not be a de novo review of the Department's planning process. The Depart-
ment's authority to plan and design state highways and bridges is plenary in nature and may not be set aside unless it is shown to be without authority and an abuse of discretion. Webb v.
Hill, 75 So. 2d 59 (Fla. 1954). Therefore, unlike a proceeding designed to formulate agency
action, this proceeding will be a review of the Department's planning process. See, Department
of Transportation v. Groves- Watkins Constructors, 530 So. 2d 912 (Fla. 1988).
The Order Referring Case for Hearing directs:
Consequently, the Hearing Officer's role will be to ascertain whether the Department departed from the procedural or substantive requirements of Section 339.155(6), Florida Statutes, and whether its design of a replacement bridge was an abuse of discretion. Moore v. Department of Health and Rehabilitative Services, 596 So. 2d 759 (Fla. 1st DCA 1992). The Department's design decision, if based on an honest exercise of discretion, should not be overturned even if it may appear erroneous and even if reasonable people disagree. Scientific Games, Inc. v.
Ditler Brothers, Inc., 586 So. 2d 1128 (Fla. 1st DCA 1991).
The Order Referring Case for Hearing grants Petitioners' motion to amend the petition and repeats that the scope of the hearing is whether the Department of Transportation "departed from the procedural or substantive requirements of Section 339.155, Florida Statutes, and whether its design of a replacement bridge constitutes an abuse of agency discretion."
This case was consolidated with two related cases, DOAH Case Nos. 95-3621 and 95-3622. In these cases, Intervenors Robert E. VanWagoner and Save Anna Maria, Inc., as petitioners, challenged the intended action of the Department of Environmental Protection to issue the Department of Transportation a dredge-and- fill permit for the construction of the new bridge and demolition of the Anna Maria Island Bridge.
Intervenor Robert E. VanWagoner intervened in the present case when the hearing officer struck two paragraphs from his petition in Case Nos. 95-3621 and 95-3622. The hearing officer allowed these paragraphs to constitute allegations of a petition to intervene in the present case and did not require Mr.
VanWagoner to file a separate pleading. In their entirety, the allegations state:
This project was initially planned in the 1980s, but no final recommendation on the type or size of bridge, nor of its preferred location, was made until January 1993, when the area Metropolitan Planning Organization turned down a citizens' task-force recommen- dation and approved this particular option. As the project has awaited permitting, no construction contracts have been let and, in fact, some construction plans have changed
even recently. In 1991 the Federal Government, and in 1993 the State Legislature, required
all projects such as these be planned under a set of 15 criteria. These criteria would have modified the planning procedures and
decision-making on this project. MPO/FDOT have steadfastly resisted bringing this project into conformance with these criteria
. . . so the project is flawed even as it stands before DEP.
Additionally, the Florida 1993 Statutes on Land and Water Management, Chp. 380, Sec. 380.27, Pg. 1531: "Coastal Infrastructure policy . . . (2) After a local government has an approved coastal management element (which the City of Holmes Beach has) . . . no state funds which are unobligated at the time the element is approved shall be expended for the
purpose of planning, designing, excavating for, preparing foundations for or constructing projects which increase the capacity of infra- structure unless such expenditure is consistent with the approved coastal management element." Such expenditure is not consistent with the coastal management element of Holmes Beach, which lies in the Coastal High Hazard area. [All ellipses are in the original.]
Save Anna Maria, Inc. filed a Petition to Intervene on October 19, 1995.
The petition alleges that the Department of Transportation has planned the proposed project in violation of the Holmes Beach comprehensive plan and Section 380.27(2) and has not attempted to reconcile the conflict, as required by Section 339.155(5). The petition alleges that the planning for the proposed project also violates Section 339.155.
The Petition to Intervene alleges that the Department of Transportation failed to follow the "procedures for public participation required by Section 339.155(6)." The Department of Transportation allegedly made a "major design change" after all of the public hearings. Thus, the Department of Transportation failed to comply with the "procedures" imposed by Section 339.155 regarding public participation and transportation planning.
The Petition to Intervene asks for an order setting aside the decision of the Department of Transportation to proceed with the proposed project due to its failure to comply with Sections 339.155 and 380.27.
Final hearing for the three consolidated cases started December 4, 1995.
At the end of the second week of the hearing, the parties asked the hearing officer to close the record in Case Nos. 95-3621 and 95-3622. The hearing officer granted the request, so that the recommended and final orders for these cases could be issued without delay. The hearing officer issued the recommended order in these cases on February 16, 1996. The recommended order in Case Nos.
95-3621 and 95-3622 is incorporated by reference in this recommended order. The Department of Environmental Protection has not yet issued the final order in Case Nos. 95-3621 and 95-3622.
The hearing officer conducted the remainder of the final hearing in Case No. 94-4634 in January 1996. As requested by the parties, the record in Case No. 94-4634 includes the record in Case Nos. 95-3621 and 95-3622, but the record in Case Nos. 95- 3621 and 95-3622 does not include the record in Case No. 94- 4634.
Upon issuing this recommended order, the hearing officer will send the record in Case Nos. 95-3621 and 95-3622 to the Department of Environmental Protection. At the same time, the hearing officer will send to the Department of Transportation the record from the January hearing. The Department of Transportation will need to obtain a copy of the record from the December hearing to complete the record in Case No. 94-4634.
The parties filed a transcript for the December hearing, but not the January hearing. Rulings on proposed findings of fact are in the appendix.
FINDINGS OF FACT
Parties
Intervenor Save Anna Maria Island, Inc. (SAM) is a not- for-profit corporation organized to inform the residents of Anna Maria Island about the proposal of the Department of Transportation (DOT) to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The general purpose of SAM is to preserve the environment and character of Anna Maria Island by persuading DOT not to proceed with the proposed project and encouraging local officials to join SAM in opposing the project.
Some members of SAM live in Sunbow Bay and West Bay Cove, which are condominiums near the proposed project. Most members of SAM and at least some Petitioners reside on Anna Maria Island. Intervenor Robert E. VanWagoner lives on Anna Maria Island.
Petitioners, Intervenor VanWagoner, and members of SAM use the Anna Maria Island Bridge, driving motor vehicles across the bridge on errands to the mainland, fishing from the bridge, and walking, jogging, and bicycling on the bridge. Due to their proximity to the bridge and Sarasota Pass, Petitioners and Intervenors have a heightened interest in the environmental, cultural, and aesthetic ramifications of the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. Petitioners and Intervenors would be uniquely impacted by any abuse by DOT in the exercise of its planning discretion in deciding to build the fixed-span, high-level bridge.
Petitioners and Intervenors have participated in the transportation- planning process culminating in DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Petitioners and Intervenors would be expected beneficiaries of additional public hearings or enhanced public participation concerning the proposed project. Petitioners and Intervenors would be uniquely impacted by any violation by DOT of statutes requiring public hearings with effective public participation.
Anna Maria Island Bridge and Proposed Bridge
Manatee Avenue, which is part of State Road 64, connects Bradenton on the east with Anna Maria Island on the west. The road segment between the mainland and the island is a minor urban arterial. The road spans Sarasota Pass, which is also known as Anna Maria Island Sound, by the Anna Maria Island Bridge about 7.2 miles west of U.S. Route 41 (Business) in downtown Bradenton.
The Anna Maria Island Bridge is a drawbridge or bascule bridge that was built 37 years ago. The deck of the drawbridge is 25 feet above the water at mean water, and the vertical clearance with a closed bascule is 17.5 feet at
mean high water. (All elevations over the water and all water depths are relative to mean water, unless otherwise stated.) The bridge spans are 48 feet long, and the bascule span is 128 feet long. The bridge is scuppered so that untreated stormwater runs off the edge of the bridge into the water below.
The Anna Maria Island Bridge is 3123 feet long and 37.4 feet wide. It contains two 12-feet traffic lanes, no shoulders, and two five-foot sidewalks separated from the traffic lanes by nine-inch curbs. The bridge is not lighted except for navigation lighting in its below-deck structure.
Manatee Avenue consists of two lanes on both sides of the Anna Maria Island Bridge. A shorter, two-lane bridge lies between the Anna Maria Island Bridge and the mainland. The speed limit along the approaches and on the Anna Maria Island Bridge is 50 miles per hour.
The approach roadway consists of two 12-foot traffic lanes with 8-foot gravel shoulders. There are no sidewalks or bicycle paths along the approaches to the bridge.
Gulf Drive is the major north-south road on Anna Maria Island, intersecting Manatee Avenue one-half mile west of the Anna Maria Island Bridge. At least partly designated as State Road 789, Gulf Drive is a two-lane arterial under state jurisdiction south of Manatee Avenue and a two-lane collector under city jurisdiction north of Manatee Avenue. There is little if any opportunity to expand the capacity of Gulf Drive or other roads on the largely developed island; though heavily travelled during peak periods, most if not all of these roads are constrained.
Average daily traffic across the Anna Maria Island Bridge in 1988 was 14,000-15,000 vehicles. A traffic signal at Gulf Drive is the major cause of traffic congestion on Manatee Avenue at the bridge. On Friday and Saturday nights, traffic at the light often backs up past the bascule.
Compared to the Anna Maria Island Bridge, the proposed bridge would be a little longer, at 3372 feet long, and half again as wide, at 54 feet wide. On a 4 percent grade, the deck would be 75 feet high at the center with two 12-foot travel lanes, two 10- foot shoulders, and one six-foot sidewalk separated from the traffic lane by a sturdier divider than those separating the sidewalks from traffic lanes on the Anna Maria Island Bridge.
The spans of the proposed bridge would be three times longer than the spans of the Anna Maria Island Bridge. The tripling of widths between supports under the bridge would open up the view under the bridge and facilitate the bypassing of the channel by small boats cutting under the bridge.
At mean high tide, the vertical clearance at the edge of the navigation channel would be 65 feet. At 800 feet from either shore, the slightly asymmetrical bridge would be 40 feet high at the west end and 45 feet high on the east end, according to the bridge profile in the Final Bridge Concept Report.
The northern edge of the proposed bridge would be 20 feet south of the southern edge of the Anna Maria Island Bridge. Construction of the proposed bridge would take about two years. Demolition of the existing bridge would be by unspecified means, probably explosives, following completion of the construction of the new bridge.
The proposed bridge would combine stormwater treatment with scuppers. The stormwater treatment would extend from the ends of the bridge 300 feet toward the center, leaving untreated stormwater along most of the proposed bridge. The untreated area on the proposed bridge would exceed the untreated area on the Anna Maria Island Bridge by over one-half acre. However, the additional amount of stormwater contaminants entering the water would be limited to road surface particles and road cleaners because no additional traffic would use the proposed two-lane bridge.
Anna Maria Island and Sarasota Pass
Anna Maria Island is a barrier island between Sarasota Pass to the east and the Gulf of Mexico to the west. For the most part, Anna Maria Island is less than one-half mile wide, except for a canalized area at the north end where a minor bridge connects the island to a small key. The Anna Maria Island Bridge connects the island to the mainland indirectly by way of Perico Island, a noncoastal barrier island to the east of Anna Maria Island.
Sarasota Pass is about 6000 feet wide at the Anna Maria Island Bridge. However, when the bridge was constructed, the contractor deposited long fingers of fill at the east and west ends of the bridge. The west finger is about 2000 feet long, and the east finger is about 1000 feet long. Thus, as a result of artificial constrictions, Sarasota Pass at the existing bridge is a little over 3000 feet wide.
The City of Holmes Beach lies at the west end of the Anna Maria Island Bridge, although its jurisdiction probably does not include the 2000 feet of fill added when the bridge was built.
The City of Anna Maria lies to the north of Holmes Beach at the north end of Anna Maria Island. The Anna Maria Island Bridge is about three miles south of the north end of the island.
About two miles south of the Anna Maria Island Bridge lies the Cortez Bridge, which is also a drawbridge of the same vintage as the Anna Maria Island Bridge. The Cortez Bridge, which is shorter than the Anna Maria Island Bridge, serves Cortez Road and connects the mainland to the island at the City of Bradenton Beach, which is the third municipality on Anna Maria Island. Bradenton Beach is a little less than two miles from the south end of the island.
The remaining major bridge on Anna Maria Island connects Gulf Drive to Longboat Key to the south. A bridge at the south end of Longboat Key runs to Lido Key, which is joined to the mainland at Sarasota by the Ringling Bridge.
The Anna Maria Island Bridge is about 9000 feet south of the confluence of Sarasota Pass and Lower Tampa Bay. The estuarine waters of Sarasota Pass connect the expansive Tampa Bay estuary to the north with the Sarasota Bay estuary to the south. Sarasota Pass and Sarasota Bay are Outstanding Florida Waters. The water in the vicinity of the Anna Maria Island Bridge is Class II water.
Seagrass is a key component of the Sarasota Pass estuary. Seagrass is vital to water quality and provides essential habitat and food for wildlife, including wading and diving birds, fish, shellfish, and manatee. Seagrass beds provide nursery habitat for juvenile marine life of considerable importance at
maturity to recreational or commercial fishermen and are important foraging areas for snook, spotted seatrout, and red drum or redfish.
Seagrass aids water quality by filtering suspended material from the water column and stabilizing the bottom. The resulting improvements in water transparency increase the depths to which sunlight can penetrate. Seagrass is dependent on sunlight. Thus, the deeper that sunlight can penetrate due to water transparency, water color, and other water-quality parameters, the deeper the water in which seagrass can grow.
Seagrass is not hardy and is especially sensitive to changes in the amount of light that it receives. Submerged in water, seagrass can be killed by reductions in water transparency, such as those typically accompanying nutrient loading, which can lead to phytoplankton in the water blocking light generally and epiphytes on the seagrass leaves directly interfering with the plant's absorption of light. Seagrass can also die off due to the introduction or resuspension of sediments in the water column, which may result from stormwater runoff, agricultural drainage, boat prop dredging, and construction (references to "construction" include demolition).
Another source of seagrass mortality is the introduction or elevation of certain toxic substances in the water column or sediments by way of stormwater runoff, agricultural drainage, boat emissions, or construction activities. Toxic substances include heavy metals and petrochemicals, such as those associated with urban stormwater runoff. Discrete patches of seagrass may also be destroyed by the burrowing and feeding of marine life such as rays.
Relatively small reductions in sunlight can destroy seagrass over a wide area. If, while all other factors remain constant, reductions in transparency or increases in turbidity reduce by one foot the maximum water depth at which seagrass can grow, the effects may be widespread in estuarine bottoms, which are often gently sloped.
Two factors discourage seagrass recolonization following their destruction, even assuming the elimination of the cause of the seagrass mortality in the first place. First, the species of seagrass involved in this case spread very slowly.
Second, even a temporary loss of seagrass may change background conditions to discourage recolonization. Once the seagrass in an area is destroyed, bottom sediments may build up, turbidity may increase, and water transparency may decrease. This process may effectively prevent seagrass recolonization at depths at which seagrass previously grew, regardless whether recolonization is through natural means or artificial transplantation. If an area is so well-flushed as to remove sediments, the loss of the stabilizing bottom vegetation may result in erosion, critically deepening the water depth so that seagrass cannot capture enough light to recolonize the area.
The Anna Maria Island Bridge is at the north end of a flourishing seagrass meadow featuring Thalassia, Halodule, and Syringodium. Important areas of seagrass exist north of the bridge, but the dense, lush seagrass meadow to the south is more prolific.
Near the Anna Maria Island Bridge, seagrass grows in water as deep as six feet. The record lacks evidence of a comprehensive, detailed bathymetry, but several important facts are clear from available evidence of water depths.
First, the water in the middle of the pass under the existing or proposed bridge is too deep for seagrass. Seagrass would not grow in the middle of the pass at this location even if there were no bridge.
Second, the water is deeper under the existing bridge than it would be under the proposed bridge. The only place where the water under the Anna Maria Island Bridge is not deeper than the water under the proposed bridge is the westernmost 100 feet, where the water depths are about the same. Most importantly, the depths under the Anna Maria Island Bridge are too great for seagrass growth along nearly the entire length of the bridge, even if the bridge were removed.
On the other hand, seagrass thrives upon the bottom that would be under at least 1600 feet of the proposed bridge. Suitably shallow depths exist 800 feet along either end of the proposed bridge, and seagrass occupies these areas, which amount to about two acres of seagrass.
Despite the known sensitivity of seagrass to changes in lighting, DOT and its consultants never considered how much the proposed bridge would shade these two acres of seagrass. There was no analysis of such factors as the area or duration of the shadow that would be cast at different times of the year by the proposed bridge or the variation in the shadow from the low east and west ends of the proposed bridge to the 40- and 45-foot heights where the seagrass ends. Thus, there is also no evidence of any analysis of the effect of such shading on the seagrass presently growing in the area that would be covered by the proposed bridge.
It is more likely than not that the two acres of seagrass presently growing in the area that would be covered by the proposed bridge would be destroyed by the proposed project. If, as is probable, the seagrass did not survive disturbances from construction, including temporary turbidity, recolonization is unlikely due to shading from the new bridge and either long- term turbidity from stirred-up, destabilized sediments or deeper water from erosion. In the unlikely event the seagrass survived the construction, shading from the new bridge would likely kill it anyway and prevent recolonization.
But more than two acres of seagrass are imperilled by the proposed project. The record is devoid of any analysis of bottom sediments. For 37 years, the scuppered Anna Maria Island Bridge has dumped untreated stormwater into the water below. The new bridge would add even more untreated stormwater to Sarasota Pass.
Stormwater contaminants include a wide variety of potentially toxic materials, such as road materials, tire materials, lubrication, road cleaners, paint, building materials, and virtually anything that might be loaded onto vehicles using the bridge. Common runoff contaminants are heavy metals, hydrocarbons, oil and grease, zinc, and copper.
Stormwater pollution of the sediments along the drip line of the Anna Maria Island Bridge is more than a theoretical possibility. Seagrass is generally absent at all depths in the 20 feet immediately south of the existing bridge. (Increased water depths account for seagrass conditions north of the bridge.)
The general absence of seagrass in the 20 feet immediately to the south of the bridge is unlikely the result of shading because dense seagrass grows in the 20 feet immediately to the south of the west end of the bridge, and
off-bridge shading appears to exist to the north of the bridge, not the south. The general absence of seagrass in the 20 feet immediately south of the bridge is unlikely the result of prop dredging because adjacent seagrass is dense.
The general absence of seagrass along the south dripline may be attributable due to the biochemical or mechanical disturbance caused by the stormwater rushing off the bridge. To the extent of mechanical disturbance, the presence of seagrass in the adjacent 20 feet at the west end of the bridge may be due to a lack of proximity to an unblocked scupper drain at that location.
To the extent the disturbance may be biochemically caused, this anomaly may reflect variations in flushing.
At least 1000 feet of seagrass (500 feet at either end of the new bridge) just south of the proposed bridge would receive untreated stormwater rushing through the scuppers of the proposed bridge. The width of the affected band would presumably be the same 20 feet as the width affected by the existing bridge. It is more likely than not that this half acre of seagrass would not survive the proposed project, especially after consideration of additional seagrass losses from prop dredging caused by small boats bypassing the channel and running between the new bridge's widely spaced supports.
Foundations for the proposed bridge would occupy 0.12 acres of seagrass. However, this seagrass would be under the deck of the proposed bridge, so this area has already been taken into account in the shading analysis.
In addition to the likely permanent destruction of 2.5 acres of seagrass under, and 20 feet south of, the proposed bridge, it is more likely than not that construction would at least temporarily destroy additional seagrass farther to the south.
The proposed project calls for the construction of large work platforms parallel to, and south of, the new bridge and small fingerplatforms running from the work platforms toward the new bridge. The work platforms would be placed in water shallower than six feet and would cover areas vegetated by seagrass. The platforms would be 1100 and 1200 feet long and 40 feet wide and would thus cover a little about two acres of seagrass.
The platforms would be low on the water--lower than the existing bridge--and effectively shade the seagrass below them. DOT witnesses promised the use of slatted platforms to minimize shading, but, again, there was no showing that the slats would pass sufficient sunlight at critical water depths for sufficient periods of time. What seagrass survived the construction of the platforms would not survive the shading and turbidity during construction, as this area is well within the mixing zone allowed by the dredge-and-fill permit tentatively approved by the Department of Environmental Protection (DEP; references to DEP include the predecessor agency, the Department of Environmental Regulation (DER), except where references to DER are necessary for clarity).
The likely loss of the two acres of seagrass from the work platform would not be permanent absent permanent alteration of the bathymetry, introduction of persistent contaminants, or collection of substantial amounts of sediment during construction in the area under the work platform.
Recolonization would probably begin upon completion of the project. The platforms would not remain in place during the entire two-year period of construction. There would be no need for the platforms on the south side of the
proposed bridge during the demolition of the existing bridge to the north. It is also possible that the platforms would be removed as construction was finished along the bridge. However, the slow growth of the seagrass suggests that considerable time would be required for the recolonization of the two acres to the present density.
There is no reason to calculate lost seagrass from the construction of the fingerplatforms. They will span the area from the south edge of the proposed bridge to the north edge of the work platforms. Thus, they cover the area already affected by the stormwater running off the bridge. The 600- by 20- foot area proposed to be served by the stormwater management system, where adjacent seagrass presumably would not be affected, might be affected by the fingerplatforms, but the small size of the platforms renders the loss unnecessary to consider for purposes of this recommended order.
DOT has proposed mitigation to compensate for some seagrass losses. But DOT did not account for the permanent loss of 2.5 acres of seagrass and temporary loss of 2.0 acres of seagrass. The proposed mitigation is ineffective for a number of reasons.
The seagrass transplant receiving area proposed for mitigation is too small. It is 0.19 acres as compared to the likely permanent loss of 2.5 acres and temporary loss of 2.0 acres. This is a dramatic departure from the normal seagrass mitigation ratio of 1:1 required by DEP. Although less important due to the gross inadequacy of the size of the transplant receiving site, there is also a major discrepancy between the densely vegetated donor area and the sparse transplantation pattern specified for the receiving area.
The primary seagrass mitigation is too speculative. The transplant receiving area is near the natural western shore of the pass. Unlawful boat use of a nearby fishing pier and bioturbation have resulted in barren patches in the transplantation area, but the recolonization process is proceeding naturally. Consistent with the slightly more colored water and somewhat poorer flushing than is found at the bridge, natural recolonization in the transplant receiving area is already establishing as extensive and dense a seagrass bed as boating and bioturbation will permit.
The natural recolonization process now taking place in the transplant receiving area will revegetate more quickly and completely the portion of the bottom capable of supporting seagrass than would DOT's mitigation effort. DOT's proposed seagrass transplantation might even disrupt the natural recolonization process.
The success of the proposed seagrass transplantation is speculative at best. Seagrass transplantation is complicated and remains experimental. Under the best of circumstances, seagrass transplantation is a complicated process that has not consistently prevented net habitat loss.
The DEP witness who reviewed DOT's application is an Environmental Specialist III who has been with DEP nearly nine years and has reviewed over 500 dredge-and-fill permits. Testifying against the permit and particularly the seagrass mitigation plan, he noted that DOT's seagrass mitigation plan promises uncertain benefits.
Unsupported by comprehensive bathymetric and water-quality data, the primary seagrass mitigation plan, which is the only one sufficiently detailed to evaluate, more likely than not would fail.
The overall seagrass mitigation plan is excessively contingent. The importance of alternative and contingent seagrass mitigation plans is underscored by the likelihood of the failure of the main transplant receiving site and the unlikelihood that seagrass will recolonize under the existing or proposed bridge. But the alternative and contingent mitigation plans are illusory.
The alternative and contingent mitigation plans lack success criteria, detailed guidelines for identifying donor and receiving areas, and practicality. The alternative and contingent mitigation plans amount to nothing more than vague and unenforceable undertakings to find seagrass somewhere and transplant it somewhere else. Such a difficult task demands more detail.
One of the two crucial functions of seagrass in the immediate area of the Anna Maria Island Bridge is that it is consumed by manatee. Manatee are especially prevalent in an area just north of the bridge.
Between 1985 and 1991, there were 432 adult manatee sightings and 44 manatee calf sightings in the vicinity of the Anna Maria Island Bridge. About two-thirds of these 476 sightings were north of the bridge and one-third south of the bridge.
Manatee use Sarasota Pass to travel between Tampa Bay and Sarasota Bay. The fill added during the construction of the Anna Maria Island Bridge already constrains the manatee passageway under the Anna Maria Island Bridge by artificially narrowing the pass by about one-third. Construction at either end of the bridge would tend to concentrate the manatee even more toward the center of the bridge where they would more likely encounter boats in the main channel.
Estimates in 1987 were that Florida's manatee population is about 1200, with equal numbers on the east and west coasts. Manatee populations are slow-breeding. Gestation runs 13-15 months with one or sometimes two calves born. The breeding cycle is 3-5 years. The natural life expectancy and reproductive life of a female are unknown. The risk of extinction heightens when the low reproductive rate and manatee mortality attributable to collisions with boats and barges are combined with the permanent and temporary loss of seagrass, two-year constriction of the already-reduced passageway at the bridge, and permanent dispersal of small boats through shallow seagrass beds where manatee are likely to feed.
The other crucial function of seagrass is in maintaining water quality through the assimilation of nutrients and stabilization of bottom sediments.
The water-quality data in this case are limited. DOT never determined the extent to which sediments at the existing bridge may have been contaminated over the years by stormwater-borne heavy metals or oil and grease. DOT never analyzed these sediments by grain size and percentage of fine organic materials.
Instead, DOT proceeded with the proposed project in Outstanding Florida Waters without knowledge of these sediments in terms of their chemical composition or susceptibility to resuspension into the water column.
IV Planning and Hearing Process
DOT's Project Development and Environmental Guidelines
Pursuant to its Project Development and Environmental (PD&E) Guidelines, DOT conducts a PD&E study at the start of the planning process for
projects of the scope of the proposed bridge. The PD&E manual, which "fully reflects the Department's policy for projected development . . .," assists project managers and district engineers by informing them of various requirements imposed by law on transportation projects and identifying the documentation required in the various stages of the transportation-planning process.
Section 2-1 of the PD&E manual describes the Advance Notification process as the means by which DOT advises other federal, state, and local agencies of proposed projects. Chapter 25 of the PD&E manual explains DEP's role in determining whether a proposed project is consistent with the Coastal Zone Management Act. Section 25-2.4 warns that an agency finding of consistency may be changed.
Section 3-1 divides proposed projects into three types in terms of environmental impact. Projects with the least impact qualify for a categoric exclusion. Projects with a categoric exclusion include actions that "do not have a significant impact on any natural, cultural, recreational, historic, or other resources [or] do not involve significant air, noise, or water quality impacts[.]" Section 18-2.4 states that a project qualifying for a categoric exclusion "may have an involvement with wetlands so long as this involvement is determined not to be significant."
The next class of proposed projects are those subjected to an environmental assessment. For such projects, "the significance of the environmental impact is not clearly established." The environmental assessment is prepared "whenever there is a need to determine the appropriate class of environmental determination required."
The last class of proposed projects are those subjected to an environmental impact statement. Such projects "significantly affect the human environment "
Projects with a categoric exclusion typically require less public involvement and environmental review than projects requiring an environmental assessment or environmental impact statement. However, Section 8-2.7.2.3 provides: "A public hearing must be held to comply with Chapter 339 F.S. regardless of funding [federal or state] . . . [w]hen a project is controversial in nature."
Section 8-2.8 describes public hearings:
A public hearing is the official public forum used by the Department through which citizens and government officials express their concerns, opinions, and comments regarding a project. It is by no means the only opportunity whereby citizens have access to the Department about
the project, but it is the official point in the project development process where information developed to date [is] shared with the community and the community can go on record officially concerning the project. Much of what is shared with the community has been developed with citizen and local government input during early stages of project development.
Section 8-2.8.1 requires a DOT representative to appear at each public hearing to discuss briefly all alternates studied and the advantages of each. The DOT representative must outline the social, economic, and environmental impacts of the project.
Revised Section 9-2.1 explains that the Project Concept Report marks the start of the "project development process." This report identifies the activities required to conduct the PD&E study.
Section 9.1 describes the engineering reports to be developed during the planning process:
The preliminary engineering report is prepared by the District or consultant during the early stages of project development .... After the public hearing has been held and a recommended alternative has been selected the final engineering report is prepared. The final engineering report is submitted after the recommended alternative has been approved by the Federal Highway Administration. . . .
Section 9-2.2.1 explains that the Final Engineering Report must follow a sufficient amount of engineering so as to consider types of bridges.
Section 10-2.4 identifies the Permit Coordination Package, which DOT sends to all agencies from which it must obtain a permit. The package evaluates the impacts of the project upon permittable areas, addressing such issues as the "elimination of habitat" and "destruction of vegetation." The package also contains a discussion of proposed mitigation.
Section 10-2.5 directs DOT to submit permit applications when the "design of the project is 65 to 70 percent complete."
Section 13-1 addresses nonfederally funded projects, which the proposed project eventually proved to be. The manual sets forth a number of policies and objectives which DOT "must address to comply with the [Florida Transportation Plan.]" These include provisions to "prohibit the destruction of endangered species and protect their habitats," "promote rehabilitation and reuse of existing facilities, structure and buildings as an alternative to new construction," and "encourage citizen participation at all levels of policy development, planning, and operations." These provisions guide DOT in the preparation of the Florida Transportation Plan and do not apply to individual transportation projects, such as the proposed bridge.
Section 13-1 states: "It shall be the policy of the Department to develop environmental studies on all major transportation projects regardless of funding to comply with state and federal laws." Section 13-1 requires DOT to prepare a state environmental impact study on "all major transportation projects" in which state monies are used.
Section 13-2.2 defines a "major transportation project" as, among other things, "Replacement of an existing bridge that could have substantial adverse effect on land use, community development patterns, community cohesion or natural ecological systems."
If a project is a "major transportation project," DOT must prepare and circulate an Advance Notification Package and conduct a hearing, which must be announced by letters to all owners or property within 300 feet of the centerline of the alternates under consideration. Section 13-2.5 imposes upon DOT the same public hearing procedures as set forth in Chapter 8 of the PD&E manual.
Proposed Project 1. 1987-89
In 1987, DOT started a bridge replacement program to identify bridges for possible replacement or widening. According to Robert Crim, DOT's project manager for the proposed bridge, one objective of the bridge program was to eliminate drawbridges.
A statewide consultant, Sverdrup Corporation, studied numerous bridges of all types for inclusion in the program and ultimately recommended that DOT widen or replace some, but not all, of them.
DOT submitted the Anna Maria Island Bridge to Sverdrup for possible inclusion in the bridge-replacement study program. But before doing so, DOT obtained the approval of the local Metropolitan Planning Organization (MPO) for replacing the bridge.
On the recommendation of Sverdrup to include the Anna Maria Island Bridge in the bridge-replacement study program, DOT included the replacement bridge in its five-year work program in 1988 and each subsequent year. DOT conducts annual public hearings on the work program. At the public hearing, DOT's representatives discuss each project, and members of the public may comment on projects.
On March 29, 1988, Sverdrup issued a Project Concept Report, which is intended to identify the ideal transportation solution. The Project Concept Report starts the PD&E process, which eventually determines if it is feasible to implement the ideal solution identified in the Project Concept Report.
The Project Concept Report proposes the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. The report refers to the proposed project as a "major bridge replacement project." The report anticipates a categoric exclusion for the project despite the classification of Sarasota Pass as Outstanding Florida Waters and the presence of considerable seagrass and manatee around the Anna Maria Island Bridge.
In April 1988, DOT circulated an Advance Notification Package to interested agencies informing them that DOT was starting a study of the construction of a two-lane bridge.
The Manatee County Board of County Commissioners responded to the April 1988 Advance Notification Package. By letter dated June 14, 1988, to DOT's then-Secretary Kaye Henderson, the County Commissioners expressed "strong support" for the replacement of the Anna Maria Island Bridge with a fixed- span, high-level bridge. The letter cautions that two lanes are inadequate for existing and projected traffic.
In a letter to Sverdrup dated October 3, 1988, the Chairman of the Board of County Commissioners emphasized the Board's position: "it is the
unanimous feeling here that planning to build anything less than a four-lane replacement would be disastrous, or simply planned obsolescence."
In August 1988, DOT hired Figg and Muller Engineers, Inc. (references to Figg and Muller include Figg Engineers, Inc., which prepared certain reports) to perform the PD&E study. The role of Figg and Muller in conducting the PD&E study was to identify the means of accomplishing a predetermined goal--in this study, the best way to replace the Anna Maria Island Bridge. DOT asked Figg and Muller specifically to evaluate a fixed-span, high-level bridge, but, in discharging its duties, Figg and Muller considered all viable alternatives, including the no- build option, and considered all environmental impacts of these alternatives.
After DOT issued the Advance Notification Package in April 1988, the MPO asked DOT to evaluate the possibility of expanding the facility to four lanes. Despite a strong preference to limit the new facility to two lanes, DOT evaluated the four-lane option to comply with local transportation plans. DOT thus directed Figg and Muller, which had already begun its work, to consider four-lane alternatives as well.
Anticipating its formal retention in August 1988 to conduct the PD&E study, Figg and Muller had earlier retained an environmental subconsultant. On May 31, 1988, Figg and Muller sent a letter with a proposed contract and related materials to Peninsula Design and Engineering, Inc. (references to this company and Mangrove Systems, Inc. shall be to "Peninsula"; the same person, first employed by Peninsula and later Mangrove Systems, performed the environmental work).
Figg and Muller described the proposed project as the "replacement of a two-lane bascule bridge . . . with a fixed- span, high-level bridge." Enclosed materials describe the new bridge as 54 feet wide with a 40-foot roadway, five-feet sidewalks on each side, and a 65-foot vertical clearance. The new bridge, which would be next to the existing bridge, is described, as it was then conceived, as a federal-aid project. The attachment warns that aesthetics, grassbeds, and manatees, among other things, would be important considerations during the study and design.
The subconsulting contract requires Peninsula to quantify wetland encroachments and endangered species. The contract warns that the environmental sensitivity of the area requires the identification of an "intensive baseline environmental assessment" to identify the best environmental alternatives regarding alignment and construction techniques. The contract warns further that "accurate description of floral and fauna communities in submergent habitats requires a greater level of effort than is typically necessary in [terrestrial] habitat evaluations." Because environmental permits could be "challenging to obtain" without intensive evaluation of submergent communities, the contract requires Peninsula to develop transects of flora communities in the impacted area and identify endangered species and their habitats. The contract requires Peninsula to develop additional biological information necessary for environmental assessment, including sampling the bottom sediments for, among other things, heavy metal concentrations.
The contract also requires Peninsula to prepare a Permit Coordination Package to develop proposed mitigation plans and evaluate project impacts, including the elimination of habitat, changes in sedimentation, and destruction of vegetation.
Peninsula conducted a macrophyte investigation on September 27, 1988. The Peninsula employee established eight stations--four just offshore from the filled-in bridge approaches and four closer to the channel, north and south of the existing bridge.
The Peninsula employee set 100-meter transects with ten data- collection sites along each transect. The transects for the stations near the approaches ran perpendicular to the bridge. The Peninsula employee followed a "similar" approach with the stations near the channel, although ambiguous language in the report leaves it unclear if the transects for the four "offshore" stations ran perpendicular or, as stated at one point, "parallel" to the bridge.
In either case, the transects run on September 27, 1988 do not travel under the existing or proposed bridge. The fieldwork thus yielded information about seagrass in the general area of the project, but no data that could be directly used to study and analyze the effects of shading from the existing or proposed bridge.
The Peninsula report notes a
continuing chronic loss of seagrass south of the existing [bridge] in the vicinity of [two]
stations. . . . The causal factors contributing to these losses include continuing historic degradation of water quality in the area and more importantly, the hydraulic conditions created by the configuration and construction
of the [bridge] approach fills and the submerged borrow areas.
The report also records "unusual foraging signatures" at one station, possibly indicative of manatee foraging.
Figg and Muller, Peninsula, and other consultants prepared the Site Characteristics Inventory Report dated November 8, 1988, and updated December 20, 1988. The inventory report summarizes the data "necessary for adequate evaluation of the location, design and impacts of the project."
The Site Characteristics Inventory Report describes various features of the Anna Maria Island Bridge. Stating that the bridge's overall vehicular accident rate is low, the inventory report notes the high percentage of rear-end collisions and concludes: "The high percentage of rear end collisions suggests a high amount of vehicle cueing [sic]. This could be attributed to vehicles stopped for a left turn, stopped for the SR 789 signalized intersection or stopped for a bridge opening."
Peninsula prepared the Permit Coordination Package by May, 1989. The package misidentifies the waters around the Anna Maria Island Bridge as Class III waters, though it reports more importantly that these waters are Outstanding Florida Waters. However, the Permit Coordination Package grossly understates the area of subtidal and intertidal seagrass within 1000 feet of the Anna Maria Island Bridge. The Permit Coordination Package considers seagrass mitigation only in passing, assuming without any analysis of water depths, water transparency, turbidity, or sediment composition, that seagrass would recolonize under the removed part of the existing bridge. The mitigation discussion is directed mostly to mangroves.
The Permit Coordination Package contains an extensive discussion of manatee as an endangered species. Peninsula reported 163 manatee sitings north of the Anna Maria Island Bridge from 1985 through 1988 and 63 sitings south of the bridge during the same time. The Permit Coordination Package contains a reasonably detailed set of suggestions for minimizing construction-related impacts to manatee.
Peninsula considered the impact of the proposed bridge on the seagrass beds upon which manatee feed. Peninsula reported that the impact on seagrass of the south alignment would be an order of magnitude greater than the impact on seagrass of the north alignment.
The Permit Coordination Package reviews research suggesting that manatee mortality from boat collisions is higher when the mammals are feeding in seagrass beds, are in areas frequented by small recreational boats that operate at relatively high speeds and move in unpredictable ways in shallow water, and are in shallow, restricted navigation channels.
The Permit Coordination Package notes that bicycles, joggers, and pedestrians use the Anna Maria Island Bridge, but not extensively. However, the Permit Coordination Package acknowledges that the bridge is "heavily used by fishermen, principally recreational or low volume commercial mullet netters using large castnets." These fishermen use the 400 feet at either end of the bridge and up to 200-300 feet of the margins of the pass.
Figg and Muller conducted a study of ship impacts, culminating in the Ship Impact Analysis Data Collection dated November 7, 1988. The document describes the proposed project as the replacement of the Anna Maria Island Bridge with a fixed- span bridge with a 65-foot clearance.
The ship-impact study notes that, from January 1985 through September 1988, 650 vessels monthly required bridge openings to navigate the Intracoastal Waterway, which runs under the Anna Maria Island Bridge. Over nearly four years, these vessels comprised 24,889 sailboats (83.5 percent), 4447 powerboats (14.9 percent), 467 tugs/barges (1.67 percent).
The tugboats were typically 35 feet by 195 feet. A variety of the sailboats had masts requiring a vertical clearance greater than 65 feet. Sailboats with masts as high as 80 feet-- including a number of boats manufactured in Florida--have passed through the opened drawbridge. The growing importance of a clearance greater than 65 feet is evidenced by the closing of other nearby passes into the Gulf and the increasing use of taller-masted boats.
The ship-impact document includes a survey of bridge tenders and commercial boating interests. One tender, who had worked at the Anna Maria Island Bridge for 12 years, reported that he had never seen or known of an marine vessel colliding with the bridge. No one else reported any such collisions. In general, persons surveyed agreed that winds and currents present no navigational difficulties at the fendered channel of the Anna Maria Island Bridge.
Figg and Muller prepared the Draft Preliminary Engineering Report dated December 20, 1988, and revised February 13, 1989, "to examine the most feasible and prudent locations and conceptual designs for the construction of the proposed bridge replacement structure . . . at Sarasota Pass ...." The study's objective was to "develop a bridge replacement that will provide an
efficient, economical and safe transportation facility with minimal adverse impacts on both the human and natural element."
The introduction to the Draft Preliminary Engineering Report notes that DOT has classified the Anna Maria Island Bridge as functionally obsolete. The draft report states that the proposed bridge replacement project is necessary to correct the primary deficiencies of a "lack of emergency shoulders, obsolete design load of H-15 and low overall clearance."
The introduction to the draft report states that the current project would be either a two- or four-lane facility. The actual size and need would be consistent with the Manatee County comprehensive plan and MPO transportation plan.
The next section of the Draft Preliminary Engineering Report describes existing conditions. This section accurately details most aspects of the existing condition of the Anna Maria Island Bridge. The draft report identifies the bridge's H-15 design load, posted speed limit of 50 miles per hour, and absence of posted weight restrictions. The draft report reveals that the bridge has 36 scheduled daily openings most of the year.
Based on a 1988 DOT inspection, the draft report states that the bascule is in "good" condition, meaning that there was "moderate incidence of significant early deterioration." Based on a 1987 DOT inspection, the draft report states that the deck, superstructure, and substructure are in "fair" condition, meaning that there was "early to moderate deterioration that does not reduce element capacity," and the channel protection was in "excellent" condition.
The draft report collects detailed accident data for the Anna Maria Island Bridge. The draft report states that the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" was 14,300 vehicles with an average daily traffic of 17,000 vehicles projected for 2010.
Based on accident data for 1984 through 1986, the draft report concedes that the accident rate for the bridge is low. For the two approaches, bascule, and remainder of the existing bridge, there were a total of 62 collisions during the three-year period, with the most prevalent being 27 rear- end collisions.
None of these 27 rear-end collisions occurred on the bascule. Most of the rear-end collisions--17--occurred on the two approaches. The remaining ten rear-end collisions occurred on the bridge between the bascule and the approaches.
The approaches were also the sites of more total collisions than the bridge itself, including the bascule. For the three-year period, 61 percent of the collisions occurred on the two approaches, 5 percent occurred on the bascule, and 34 percent occurred on the remainder of the bridge.
There was only one collision involving a vehicle and a pedestrian during the three years in question. This took place on the eastern approach. There were no collisions involving bicyclists.
The draft report states that a high percentage of the rear-end collisions occurred near a boat ramp on the west approach and a marina and convenience store on the east approach. The marina and convenience store are
about one-quarter mile east of the Anna Maria Island Bridge. The boat ramp is between the west end of the bridge and the signal at Gulf Drive. The draft report suggests that rear-end collisions on the approaches may involve vehicles slowing for right turns into these destinations.
The draft report opines that the "high percentage of rear-end collisions on the bridge (39 percent)" may involve vehicles stopping quickly for a bridge opening. This suggestion ignores the queuing effect from vehicles turning into the boat ramp or convenience store and marina. The draft report tries to limit the effect of these traffic backups to rear-end collisions on the bridge approaches. However, attributing a high percentage of rear-end collisions on the bridge to bridge openings ignores the traffic backups from these off-bridge sources, as well as the traffic light at Gulf Drive.
Figg and Muller's analysis of the sources of rear-end collisions lacks support, such as through analysis of accident reports. The analysis even cites the wrong figure. The 39 percent figure applies to total collisions on the bridge compared to total collisions; the percentage of total rear-end collisions occurring on the bridge is 37 percent (10/27).
The draft report also falters when describing cultural and environmental features. Noting low pedestrian volumes on the Anna Maria Island Bridge, the draft report contends three times in one paragraph that "pedestrian activity is not a major consideration for this project," "pedestrian activity does not warrant special consideration on the project," and "sidewalks ... are used very little by pedestrians."
As for environmental factors, the draft report incorrectly identifies the Class II waters surrounding the Anna Maria Island Bridge as Class III waters, although the draft report correctly notes that these waters are Outstanding Florida Waters. But the omissions in the draft report are more significant. The draft report omits any mention of manatee or the seagrass located under what would be the new bridge. The draft report does not discuss the effects of shading, water transparency, and water depth on seagrass.
The section following the description of existing conditions is entitled "Need for Improvement." As the name of the section suggests, this part of the Draft Preliminary Engineering Report contains less data and more analysis of the existing and proposed bridges. The discussion is at times more promotional than it is analytic.
This section of the draft report starts by noting that the existing bridge has had no significant upgrades to its two, 12-foot shoulder-less traffic lanes. The draft report finds that the lack of shoulders presents a traffic hazard when traffic is stalled on the bridge.
The opening of the drawbridge is another source of danger to motorists due to stopped traffic, according to the draft report. The draft report argues that this hazard is "substantiated" by the previously discussed data on rear-end collisions. The draft report summarizes the above-described accident data "for the existing facility" without disclosing that more than half of the accidents occurred on the bridge approaches and not the bridge itself.
The draft report adds that opening the drawbridge would also present a danger during evacuations by preventing people from evacuating the island. However, there is no discussion of Coast Guard policy, which is not to order bridge openings during an evacuation, nor is there any mention of the frequency
of evacuations, which take place about once every six years. There is also no discussion of the widely known necessity of early evacuations from the island due to early flooding of island roads and bridge approaches. On incomplete data, the draft report merely contends that "evacuation efforts would be severely hampered" by the need to open the drawbridge.
The draft report suggests that bicycle traffic would be better accommodated by a new bridge. The draft report observes that the two existing five-foot sidewalks on the Anna Maria Island Bridge create an unsafe condition by mixing bicycle traffic with pedestrians and fishermen. The draft report neglects to discuss the discouraging effects on bicyclists, pedestrians, and fishermen of using a single six-foot sidewalk running up a 4 percent grade to a final height of 75 feet over the water.
The draft report states that the MPO's 2000 Plan identified a need for a four-lane facility over Sarasota Pass. However, the 2010 Plan, which was prepared after the draft report, identifies no such need. The draft report notes that the proposed project is also in compliance with the Manatee County comprehensive plan.
Addressing social and economic issues, the draft report accurately describes the area surrounding the proposed project as a "naturally beautiful site" with the proposed project promising to be "highly visible from both land and water." The draft report assures that engineers would design a bridge profile "to ensure a pleasing visual effect."
The draft report acknowledges that the proposed project is not directly needed to meet any economic demands. But the "social demands for the project would be based on a more efficient and convenient transportation system linking Anna Maria Island with the mainland." The draft report suggests that the improved link "could foster economic development in the area" and everyone would be served by a more dependable evacuation route. However, there is no evidence that the existing drawbridge has ever impeded vehicular or vessel traffic during an evacuation or that the proposed bridge would result in more traffic on Anna Maria Island by way of Manatee Avenue or other routes.
The next section of the Draft Preliminary Engineering Report is the analysis of alternative alignments. This section first considers the no-build alternative. The cited advantages of not building the project are that there would be no disturbance to the environment, even though these impacts, according to the draft report, "are nearly all of short term duration and can be considered as minor over the life of the new structure."
On the other hand, the benefits of building the bridge include the elimination of the inconvenience of the drawbridge to motorists and boaters and the cost of operation of the typical bascule bridge. The draft report states that maintenance costs for a typical bascule bridge are about $150,000 annually plus estimated major rehabilitation costs of $500,000 to $750,000 every 15-20 years. Additional reported benefits to replacing the Anna Maria Island Bridge are eliminating the safety hazards posed by the lack of shoulders and raising by
25 percent the design load from H-15 to H-20.
The draft report concludes that the benefits of the no-build alternative are outweighed by the "substandard design and safety concerns."
The draft report considers a two-lane bridge, a four- lane bridge, and two two-lane bridges. Additionally, the draft report considers alignments
north and south of the Anna Maria Island Bridge with three structure levels: high-level fixed, mid-level bascule (i.e., a 45-foot closed vertical clearance drawbridge), and low-level bascule. These options account for 18 alternatives.
Figg and Muller studied each of the 18 alternatives for traffic flow, ease of construction, bicycle accessibility, operation, safety, aesthetics, environmental impacts, right-of- way impacts, and project costs.
As to the north alignment, the draft report notes several problems, including the need to relocate a power line and water line and modify two navigation channels. The draft report states that the boat ramp just west of the bridge and the marina on the east would be impacted if DOT constructed a single four- lane bridge, which would also impact right-of-way.
As to the south alignment, the draft report notes several problems, including the need to relocate a water line. Any structure would also impact right-of-way.
As to the low- and mid-level bascules, the draft report contends without significant supporting data that few boats could pass through an unopened mid-level bascule that could not also pass through an unopened low- level bascule. The draft report cannot justify any bascule options due to the "additional expenses of the bascule construction, bascule maintenance and bascule operations." The draft report cautions that the bascule alternatives are not "a practical, improved replacement to the existing bascule bridge."
The final section of the Draft Preliminary Engineering Report is entitled "Preliminary Design Analysis." The draft report offers rough summaries of projected construction costs for various alternatives. The projections are of greater value for the comparison of differences in probable costs of various alternatives than they are for identifying the estimated cost of a particular alternative.
According to the draft report, a two-lane, fixed- span, high-level bridge on the north alignment would cost $9.9 million, and a two-lane, mid-level bascule on the north alignment would cost $12.5 million. On the south alignment, these bridges would cost $10 and $12.6 million, respectively.
Discussing the benefits of replacing the Anna Maria Island Bridge, the draft report states that the "most obvious" benefit would be the elimination of the delays to vehicular and vessel traffic from drawbridge openings. A fixed-span bridge also would offer a dependable evacuation route. The draft report suggests that shallow-draft boaters would find navigation enhanced by the tripling of the widths between the supports under the fixed-span, high-level bridge as compared to the more narrowly spaced supports under the existing bridge. The draft report again asserts that the new structure would also offer improved aesthetics, both in terms of the view of the proposed bridge and the view from the proposed bridge.
Page VIII-13 of the draft report is missing from SAM Exhibit No. 32. In the final report, and possibly in the draft report, Figg and Muller admitted on this page that the proposed grade of the new bridge would "limit fishing activities and pedestrian use." A brief discussion of rear-end collisions and economic and community development was probably present on the omitted page, but this section generally summarizes discussions from earlier sections.
The draft report also considers wetland impacts of new two-lane bridges on the north and south alignments. Relying on the understatements of Peninsula, the draft report states that the area of subtidal seagrass is only
0.63 acres 500 feet north of the existing bridge and 0 acres 500 feet south of the existing bridge.
The draft report concludes that a two-lane bridge 25 feet north or 25 feet south of the Anna Maria Island Bridge would not impact any subtidal seagrass and would impact only 0.06 acres of intertidal seagrass on the north alignment and 1.65 acres of intertidal seagrass on the south alignment. The draft report also considers the impacts of new four-lane bridges on the north and south alignment. All of this analysis understates seagrass loss by considerable amounts.
Based on these data and analysis, the Draft Preliminary Engineering Report concludes that
[a]lignment se[le]ctions based solely on a vegetative impact evaluation would focus on the northern alternative. However, alignment selection will necessarily need to be tempered with a consideration of endangered species involvement and impacts to navigation, partic- ularly when addressing the northern alignment.
Sverdrup reviewed Figg and Muller's Draft Preliminary Engineering Report prior to its revision in February 1989. Addressing the discussion of bascule alternates, one Sverdrup engineer stated in a Review Comment Sheet dated January 6, 1989:
Information presented thus far does not support premature rejection of bascule options. Vessel height distribution may require some detective work. Consider visits to local marinas, corre- lation with vessel numbers/names on bridge tender logs, additional data recorded by bridge tenders for a few weeks. . . . Objective is to establish relations between traffic benefit vs. reduced openings for different vessel clearances.
Ultimate rejection or viability of bascule alternate must have adequate foundation. . . .
Sverdrup's environmental representative, Don Smith, reviewed the work of Peninsula. Despite Peninsula's excessively conservative estimates of seagrass loss, Mr. Smith rejected even these estimates as too pessimistic. By review comment sheet to Figg and Muller dated December 28, 1988, Mr. Smith wrote: "As presently written, this section grossly overestimates the extent of possible wetland impact & must be redone."
Adamantly rejecting Mr. Smith's criticism, the Peninsula employee wrote on his copy of the review comment sheet:
Table 7 does not grossly over estimate wetland impacts. . . . The acreage figures are not grossly overestimated at all. I resent the grossly! Does Sverdrup have any DATA! that reflects my gross overestimates! NO, SHIT
A memorandum dated January 23, 1989, memorializes the conclusions of a meeting involving Sverdrup and Figg and Muller representatives. Figg and Muller argued that its subconsultant did not overestimate wetlands and asked Sverdrup to substantiate Mr. Smith's contrary assertion. Sverdrup appears to have relented, and the two consultants agreed to remove a drawing.
On January 11 and 12, 1989, the value engineering (VE) team met to define the goals of the first phase of review. The VE team is a multidisciplinary group of engineers unrelated to the project who determine the suitability of the proposal and the feasibility of any more cost-effective proposals.
VE responds to the design alternatives presented in the draft report. The VE team listened to a Figg and Muller representative discuss alignment issues, including the presence of seagrass beds immediately south of the Anna Maria Island Bridge. The VE team understood that concerns about the north alignment included navigation and "occasional manatee sitings," and concerns about the south alignment included greater seagrass impact.
The VE team visited the Anna Maria Island Bridge, which they found to be in "good condition." They found "no severe deterioration which would endanger the capacity of the bridge." Preliminary VE considers the maintenance and operation costs of bascule alternates, although the memorandum omits mention of the costs of the no-build alternate. Preliminary VE does not identify the
no-build alternative as a viable option requiring further consideration.
On February 27, 1989, DOT conducted its first public meeting on the proposed project. DOT conducted a public information workshop at the Manatee County public library in Bradenton. DOT regarded the February 1989 workshop as an opportunity for the public and DOT, as equal partners, to gather and make basic plans about whether to replace the Anna Maria Island Bridge and, if so, with what.
In March 1989, the MPO adopted an updated long-range transportation plan, which still showed State Road 64 as a four- lane road, including the segment over Sarasota Pass.
A memorandum dated March 31, 1989, from a Sverdrup representative to a Figg and Muller representative transmitted new traffic data with the direction: "This data must be analyzed and documented in a revised Traffic Report in order to reach the conclusions necessary to proceed with the project development." The Sverdrup representative relieved Figg and Muller from the obligation of doing certain traffic calculations for bascule alternatives "since it is evident that the fixed high-level structure will be recommended due to lower overall cost."
A review comment sheet dated June 13, 1989, from Mr. Smith to Figg and Muller suggested that they revise the draft report to state that the "no- build alternate is eliminated from further consideration; i.e, definitively close the door."
On July 7, 1989, Mr. Crim, two Figg and Muller representatives, and two Sverdrup representatives, including Mr. Smith, discussed the north and south alignments to try to agree on the preferred alternative. Someone mentioned that they needed to take a closer look at the environmental impacts because a DEP representative had implied to Sverdrup that the "documentation must show very
good reasons for selecting anything but the most environmentally sound alternative." A Figg and Muller representative added that manatee frequently use an area north of the bridge, but the participants felt this was not a significant issue for alternative selection "since manatees can be found throughout the area, north and south."
The agenda for the July 7 meeting contains numerous items. Under seagrass, it identifies a need to confirm the area impacted, adding parenthetically "3.65 acres vegetated and 0.63 acres non-vegetated?"
On July 7, 1989, Mr. Crim and a Sverdrup representative met with three representatives of the Federal Highway Administration to obtain their comments on the Draft Preliminary Engineering Report. The Sverdrup representative explained that the existing bridge was functionally obsolete due to the lack of shoulders and substandard design load. She explained that the proposed project would be a new four-lane bridge and did not identify a no-build alternative. She disclosed that seagrass impacts were 3.65 acres for the south alignment and 1.55 acres for the north alignment and said that the Federal Highway Administration would receive an application for a categoric exclusion in mid-September, 1989.
On July 20, 1989, two Sverdrup representatives, including Mr. Smith, participated in a teleconference with five DOT representatives, including Mr. Crim. They discussed the north and south alignments to try to agree on a preferred alternative to present at the August 10 public hearing. The participants discussed the navigational problems with the north alignment and seagrass problems with the south alignment.
Sverdrup tended to agree with Figg and Muller's recommendation of the south alignment. The participants agreed that it should be possible to negotiate an acceptable mitigation plan with DEP, even though one of the DOT representatives warned that DOT District 1, in which the proposed project is located, "has not had much success with seagrass mitigation in the past and that it can be very expensive and still not work." This DOT representative suggested that they present both alignments at the public hearing and defer the recommendation until after receiving public comments. The participants decided to do this.
On August 10, 1989, DOT conducted the first public hearing on the project. The public hearing took place at the Anna Maria Island City Hall.
DOT uses public hearings to present to the public a preferred alternate and give the public a chance to present information to show that DOT or its consultants have made any mistakes or omitted any considerations or that circumstances have changed materially.
Transcribed by a court reporter, a public hearing is tightly structured. The hearing begins with opening remarks of representatives of DOT and its consultants describing the proposed project. These opening remarks are followed by a break during which members of the public may approach representatives of DOT or the consultants, ask questions, and presumably receive answers. However, these questions and answers are not recorded by the court reporter.
Following the break, back on the record, members of the public may make oral comments to the DOT and consultant representatives, who almost invariably decline to respond to general questions or engage in any give-and-
take with a speaker. Likewise, the DOT and consultant representatives almost invariably insist that speakers limit their comments to the individual project and not discuss other projects, even if relevant (e.g., the Cortez Bridge and a new bridge farther south).
After the hearing is concluded, the public may submit written comments for a short period. After this period ends, DOT and the consultants meet privately, consider the record, make a decision on the project, and announce the decision publicly.
About 50 persons attended the August 10 public hearing, which was held at Anna Maria City Hall. DOT, Sverdrup, and Figg and Muller provided comment sheets, displays, and reports for public inspection at the public hearing. Representatives of the consultants and DOT encouraged the audience to examine the materials, ask questions of knowledgeable individuals during the off-the-record break, and then make public comments.
According to Mr. Crim, DOT intended the August 1989 public hearing to serve as a combined location and design public hearing. However, DOT had failed to give notice to owners of condominiums within 300 feet of the centerline of the west terminus of the proposed project. DOT instead had notified only the condominium association.
In his opening remarks to the persons attending the public hearing, Mr. Crim stated that the Anna Maria Island Bridge was one of about 60 bridges in the statewide program "being studied for future replacement." He explained that DOT was "evaluating viable options for either improving or replacing these bridges, obtaining public input and then completing the environmental documentation and design for any recommended improvements."
Mr. Crim told the audience:
Our study to replace the Anna Maria Island Bridge is nearing the completion of the project development phase. Tonight's hearing is an important step in that phase where we present preferred project alternates for your input prior to selecting a final alternate and then proceeding with preliminary design.
Mr. Smith told the audience that DOT had three options: build a new bridge on the north alignment, build a new bridge on the south alignment, or not build a bridge. He stressed that displays in the hearing room did not represent "final plans" and that "absolutely no decisions have been made to this point." Later during the public-comment portion of the public hearing, Mr. Smith stated that there would be no more public hearings, unless so much time passed without construction that the project had to undergo additional review.
A Figg and Muller representative told the audience that the 36 drawbridge openings daily "is a cause of a significant number of rear end collision accidents." She identified as the preferred alternative two fixed- span, high- level, two-lane bridges with a single such bridge initially.
The Figg and Muller representative noted the seagrass impacts of both alignments. She stated that manatee are in the area, but that DOT expected no impacts due to the use of protective measures.
After an hour and a half, the representatives of DOT and the consultants finished their initial presentations. During the break, members of the audience spoke with the representatives of DOT and the consultants.
Public comments were divided as to the proposed fixed-span, high- level bridge. Speakers informed DOT of impending recreational and commercial development on the north side of the bridge, as well as navigational concerns, that would be adversely affected by the north alignment.
Explaining DOT's practice of typically presenting a preferred alternate, Mr. Crim testified that DOT "can't go to a public hearing and say we don't know what we're going to do. Anybody got any comments?" Instead, DOT presents its recommendation to sharpen the focus of the public hearing. The February 1989 workshop was to help form the decision; the August 1989 public hearing was to show whether DOT should change a tentative decision.
On November 1, 1989, Figg and Muller issued the Final Preliminary Engineering Report. The text of the final report is not materially different from the text of the draft report issued nine months earlier except as noted below. Mr. Crim testified that, at this point, DOT had decided to replace the bridge, but had not decided to build a fixed-span, high-level bridge.
The final report recites the same "primary deficiencies" of the Anna Maria Island Bridge cited in the draft report, but adds a new deficiency--delays due to bascule openings. Acknowledging the existence of the marina and convenience store one-quarter mile east of the bridge, the final report suggests that collisions on the bridge approaches could be due to vehicles stopping for left turns, as well as right turns.
Discussing traffic projections, the final report mentions that, when the draft report was first drafted in December 1988, traffic projections disclosed a need for a two- lane facility with possible expansion to four lanes at some future point. New traffic information demonstrated that the four-lane facility would be needed prior to 2015.
The final report increases, without discussion, the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" to 15,400, from 14,300 vehicles reported in the draft report for the same period. The final report adds that the two-lane bridge would reach a level of service E in 2006, so "it is recommended that a four lane facility be constructed prior to this date."
The final report contains a new section on endangered and threatened species. This section contains data showing that the area around the Anna Maria Island Bridge is frequented by manatee. The final report relays the information from the Permit Coordination Package that, from 1985 through 1988, there were
163 manatee sitings north of the bridge and 63 manatee sitings south of the bridge.
Early in the section analyzing alternative alignments, the final report notes, as does the draft report, that the benefits of the no-build alternative are outweighed by the disadvantages of "substandard design and safety concerns." Recognizing that only the no-build alternative would avoid impacts to the wetlands, the Final Preliminary Engineering Report states: "this alternative is not feasible considering the structural deficiency of the bridge, the absence of shoulders (functional obsolescence) and projected traffic increases indicating the need for two additional lanes." The final report
concludes: "Therefore, the No-Build Alternative is not a viable alternative and is hereby eliminated from further consideration in this report."
The final report revises the comparative cost estimates, reducing the north and south alignment costs for a two-lane bridge by a little over $1 million. The final report continues to understate the area of subtidal seagrass north and south of the bridge.
The final report describes the public involvement on the proposed project. Referring to the public workshop that took place on February 27, 1989. the final report states that, of the 36 individuals who supplied written comments on the proposed bridge, 21 favored a two-lane bridge, six favored a four-lane bridge, 30 favored a high-level, fixed-span bridge, 21 favored the south alignment, and two favored the north alignment.
Summarizing the results of the public hearing held on August 10, 1989, the final report recounts that, among oral comments, five favored two lanes, three favored four lanes, five favored the south alignment, no one favored the north alignment, and seven favored the no-build alternative. Written comments were two favoring four lanes, one favoring two lanes, four favoring the south alignment, no one favoring the north alignment, and one favoring the no-build alternative.
A new section of the final report is entitled, "Preferred Alternative." Recommending that four lanes be built, the final report recommends the south alignment, mostly on the basis of impediments to navigation posed by the north alignment. There is little discussion of seagrass impact. Relying on the needs of boat traffic, although ignoring the needs of high- masted boats, the final report recommends a fixed-span, high- level bridge and proceeds to analyze the projected costs in greater detail than did the draft report.
The remaining material differences between the draft and final reports are that the final report drops the repeated references to the unimportance of pedestrian activity on the Anna Maria Island Bridge, the description of the area surrounding the proposed bridge as "a naturally beautiful site," the assurance that the proposed bridge would be "highly visible from both land and water," and the exhortation that DOT consider the "aesthetics or visual impacts of the project." The final report continues to misidentify the waters around the Anna Maria Island Bridge as Class III waters.
On November 27, 1989, DOT circulated a revised Advance Notification Package, noting that the new proposal was for two two-lane, high-level bridges to be constructed in two phases. The notice states that the project is a federal-aid project and that DOT and the Federal Highway Administration would determine the degree of environmental documentation necessary.
2. 1990-92
Various state agencies responded in early 1990 to the revised Advance Notification Package. Several agencies expressed reservations about the proposed project, although ultimately all state agencies dropped their objections at this stage.
By letter dated January 4, 1990, DER objected to the loss of seagrass from construction and shading. DER also warned that seagrass mitigation had met with little success in this general area. DER suggested that DOT consider
rebuilding the bridge at its current location at or near its current width. The letter suggests that DOT take several steps. In particular, the letter states that the proposed project is in Outstanding Florida Waters, and DOT must, among other things, show that "existing ambient water quality will not be lowered."
Representatives of DOT, Sverdrup, Figg and Muller, Peninsula, and DER met on March 23, 1990, to discuss DER concerns about impacts to seagrass and the ability to mitigate. The Peninsula employee estimated seagrass losses of 0.1 acre from pier placement, 0.5 acres (worst case) from construction, and an overshadow effect. Due to the greater height of the new bridge, someone at the meeting said that the overshadow effect would be minimized.
As to mitigation, someone reported DER's concern that seagrass typically was already growing where conditions were favorable and, where seagrass was absent, conditions were unfavorable. The Peninsula employee suggested that they could fill holes in the area, raising the bottom elevation to a depth at which seagrass could grow.
Someone reported DER's insistence to consider mitigation now, to avoid problems in the permitting stage. In response, DOT "proposed to commit to studying the overshadow effects of the new bridge and the rate of re- colonization of seagrasses in the alignment of the old bridge." DOT agreed to develop alternative mitigation prior to construction of the second two-lane bridge, if recolonization failed. DER agreed to this approach.
The agreement between DOT and DER was memorialized by letter dated March 30, 1990, from a DOT representative to a DER representative. The letter promises that, after completion of the construction of the first two-lane bridge, DOT would start monitoring recolonization where the Anna Maria Island Bridge had stood and the effect of shading from the new bridge. If at the end of a monitoring period of unspecified duration an unspecified entity determined that recolonization had been unsuccessful, DOT would implement mitigation at an unspecified location. The letter concludes that DOT's commitment to this procedure will "alleviate DER's concerns regarding the impacts to seagrass and allow for a determination of consistency with the Florida Coastal Management Program."
By letter from DER to the Office of the Governor dated April 13, 1990, DER stated that DOT had provided reasonable assurance of seagrass mitigation in part by assuring that seagrass would recolonize under the existing bridge once it was removed. DER noted that DOT promised to monitor recolonization and shading following removal of the existing bridge and construction of the first two-lane bridge. DER recommended a bathymetric survey and stated that a permit would contain success criteria for natural recolonization and require alternate mitigation plans. Withdrawing its earlier objection, the DER letter finds that the project is "consistent with our authorities in the Florida Coastal Management Program at this time." The letter concludes with the promise of a more detailed review during permitting.
In the meantime, consultants continued to work on the project. Figg and Muller prepared a draft of the Final Engineering Report and submitted it to Sverdrup for review. In a Review Comment Sheet dated February 15, 1990, directed to Figg and Muller, Mr. Smith again protested high estimates of seagrass losses, stating: "Shading is a non-issue which is not even addressed in any agency regulations. Revise the document accordingly."
Other work early in 1990 included final VE review of the project. The second VE memorandum was completed March 26, 1990. Memorializing a meeting that took place February 28, 1990, final VE describes the proposed project as a 65-foot clearance bridge 20 feet north of the Anna Maria Island Bridge.
The memorandum concludes that VE could offer no significant improvements to the proposed project. The memorandum does not consider the no- build alternative. However, the memorandum recommends that DOT consider relaxing the ship-impact standard at the ends of the bridge based on the shallow depths at the ends of the bridge, the absence of reported marine collisions with the bridge, and the existence of alternative access to Anna Maria Island.
While Figg and Muller spent most of 1990 and early 1991 preparing the Final Engineering Report, consultants or subconsultants prepared additional reports, such as the geotechnical report and bridge hydraulic report. In December 1990, DOT made some changes to the new design, widening the shoulders and adding a sidewalk. Figg and Muller issued the Final Engineering Report about a year after the date of January 31, 1990, shown on its title page.
The first paragraph of the Final Engineering Report makes the case for the replacement of the existing bridge, but without any mention of structural deficiency. The report states that the Anna Maria Island Bridge is
narrow, without shoulders, and functionally obsolete. . . . In addition to safety concerns associated with a lack of shoulders, accident data show a high number of rear end collisions. One factor contributing to these collisions is the delays to the traffic caused by the opening of the bridge's drawspan. These factors, combined with a need for efficient and safe transportation routes to and from the islands, determined the need to replace the existing bridge at this time.
The Final Engineering Report states that DOT and its consultants evaluated 18 alternatives, plus the no-build alternative, and describes the Final Preliminary Engineering Report. The Final Engineering Report notes that the Federal Highway Administration issued a categoric exclusion July 23, 1990.
The categoric exclusion was based on, among other things, a DOT representation that the project had no "controversy potential," which may have seemed plausible at the time. DOT District 1 Secretary David May contended that such a representation, which preceded his appointment as District Secretary, would be correct if the controversy were based on unfounded information. In any event, the Federal Highway Administration did not withdraw the categoric exclusion in 1995, even after DOT disclosed the controversy surrounding the proposed project.
The Final Engineering Report explains that the original traffic data were faulty. Correct data revealed that the "original concept of a two-lane replacement bridge was unworkable." Thus, DOT and the consultants decided to pursue a two-phase project with the first phase being the demolition of the existing bridge and construction of a single two-lane bridge.
The Final Engineering Report states that the decision to build ultimately four lanes warranted reissuance of the Advance Notification Package.
The Final Engineering Report states that, in a meeting between representatives of DER and DOT, DOT representatives suggested that the advance notification stage was premature for the development of mitigation commitments, but acceded to DER's insistence due to the availability of a "great deal" of information. The two agencies reportedly reached an understanding of what would be required to offset environmental impacts. The Final Engineering Report states: "Based on that agreement, DOT proceeded with completing the environmental study process and the final design at a cost of approximately $1,000,000 of public funds."
The Final Engineering Report discloses that the consultants eliminated the existing alignment in the PD&E study and selected the south alignment due to fewer adverse impacts. The report notes direct and indirect impacts to 3.01 acres of vegetated wetlands, including 1.65 acres of seagrass. The report calculates the seagrass impacts as 0.25 acres from pier placement and
1.4 acres from shading. DOT and the consultants selected the south alignment based on "strong public support" and DER's suggestion that impacts could be offset.
The Final Engineering Report explains that DOT eliminated the alternate of the existing alignment because of the loss of access to the island from Manatee Avenue during the two- year construction period. The Final Engineering Report does not mention the reasons for the elimination of the no- build alternative.
On July 8, 1991, Figg and Muller issued the Final Bridge Concept Report. The concept remained the construction of two, two-lane fixed-span, high-level bridges in two phases and the removal of the Anna Maria Island Bridge. The purpose of the Final Bridge Concept Report is to provide detailed findings of different types of structures and recommend the appropriate alternatives for consideration in the "final phase of the design and plan preparation." The recommendation is based on comparative analyses of cost and design features.
The Final Bridge Concept Report refers the reader to the Final Preliminary Engineering Report for information about environmental conditions. In a brief synopsis, the Final Bridge Concept Report continues erroneously to describe the waters around the Anna Maria Island Bridge as Class III waters, but recognizes that they are Outstanding Florida Waters, so "special emphasis must be placed on the water quality." The Final Bridge Concept Report notes that the total area of seagrass "involved" with the proposed bridge is 1.65 acres and that manatee use the area.
Describing the two phases of the overall project, the Final Bridge Concept Report states that the first two-lane bridge would be constructed in the same "corridor alignment," just south of the existing bridge. DOT would build the second bridge when traffic warranted, which is projected to be 2006.
In mid-1991, DOT entered into a new contract with Figg and Muller to prepare final design and construction plans for the proposed bridge. DOT included funding for construction of the bridge in its work program adopted in July 1991 with work scheduled for fiscal year 1996.
In June and July 1992, the Peninsula employee conducted additional fieldwork to determine the extent of seagrass. This time, though, his work focused specifically on the area under the existing and proposed bridge.
The resulting Baseline Seagrass Survey, which Peninsula submitted to DEP in November 1992, states that the purpose of the fieldwork was to collect sufficient baseline data so that DOT could determine the success of natural recolonization under the existing bridge and seagrass shading under the new bridge.
The 1992 fieldwork is more intensive than the 1988 fieldwork. The Peninsula employee made ten north-south transects across Sarasota Pass. Although still lacking a bathymetric survey of bottom elevations and effective water depths, the employee calculated approximate water depths at each of 20 data- collection points along each transect and determined, for each point, the species, shoot density, and areal density of any seagrass. He also collected water-quality data for temperature, salinity, conductivity, dissolved oxygen, and water clarity (secchi depth) and recorded "incidental faunal observations."
According to Mr. Crim, DOT had completed about 90 percent of its final design and construction plans in August 1992. At this time, DOT applied to the Army Corps of Engineers for a dredge-and-fill permit, DER for a dredge- and-fill permit, Coast Guard for a bridge permit, and Southwest Florida Water Management District for a management-and-storage-of-surface- water permit.
In November 1992, residents of Anna Maria, Holmes Beach, and Bradenton Beach voted on a referendum concerning the 65-foot clearance, fixed- span bridge proposed to replace the Anna Maria Island Bridge. The vote was 1961 opposed and 515 in favor.
On December 11, 1992, the City Council of Bradenton Beach voted for DOT to place the proposed bridge project on hold pending further study.
However, by memorandum dated December 1, 1992, to Mr. Crim, District Secretary May stated:
You may be aware that there is concern currently being expressed by some local officials about the design of the Anna Maria Bridge replacement project.
We will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project "production ready" as rapidly as possible.
3. 1993
Public opposition to the proposed bridge--in any alignment--continued in 1993. DOT participated in two MPO- sponsored public hearings on January 8, 1993, where numerous bridge opponents expressed disapproval of the proposed project.
At the 1:00 pm meeting, a DOT representative disclosed that the bridge construction plans were 95 percent complete and right-of-way acquisition was underway. At the 7:00 pm meeting, the DOT representative responded to a question whether DOT could change its plans. He acknowledged that DOT and the MPO could change their plans, but a discussion of such a change three years earlier would have been better because dropping the project now would mean that "we have thrown away a million dollars of tax money."
On January 13, 1993, a special MPO task force met and voted 4-3 to oppose the proposed bridge. There was some support on the task force for a 45- foot-high bascule bridge instead of a fixed-span, high-level bridge.
On January 19, 1993, area mayors and city council members met with District Secretary May, who discussed the DOT five-year work program. Addressing the proposed bridge, District Secretary May said:
. . . one of the primary components of the program is the Anna Maria Bridge and I know that's a great concern to all of you. It's a concern to the department too. So, rather than get into a big discourse on that, it is a 65', fixed span bridge. It's been designed as such. We're in the middle of purchasing right-of-way for that bridge. . . .
In response to a question as to the extent of completion of design work and the ability of the MPO to stop the project, District Secretary May stated that 100 percent of the design was completed and, by law, both the MPO and DOT had to concur to stop the project.
In response to criticism about the limited extent of public participation, District Secretary May conceded that DOT had improved public participation compared to seven or eight years ago, when DOT "didn't go to . . .
near the level of public involvement that we do now." For the Ringling Bridge, for example, he said that he was "soliciting all sorts of input from all those people," referring to the public.
Conceding that the Anna Maria Island Bridge is "not structurally deficient," District Secretary May explained that rehabilitation was not a cost- effective solution. When asked if it was a "done deal that the new bridge is coming in," District Secretary May answered, ". . . Yes, there's a new bridge going to be put there." Responding to a follow-up question, District Secretary May repeated the message: "Without a doubt. As opposed to rehabilitation. The MPO has not come to us with any requests yet so we'll respond once we get a request from them. Yes, ma'am."
When asked what DOT would do if the MPO now suggested a 45-foot bascule, District Secretary May said he would "respond at that point in time. But that's a million dollars worth of throw-away design."
Asked if public reaction to the proposed bridge would not justify dropping the project, District Secretary May replied:
. . . First, if I IMPLIED that we were not doing a good job several years ago [in public participation], that, that is incorrect. We did as good a job as we could do then. We're trying . . . we're exceeding that now.
He added that the results of the island-wide referendum were based in part on public misunderstanding of the safety issue and advised that the bridge is of interest to the region, not merely the island.
Asked at the end of the meeting if he meant that the proposed bridge was "going to happen," District Secretary May answered, "A bridge is going to happen here." He added, "We need a replacement. We need to replace that bridge. We need to have a bridge replacement," rejecting rehabilitation as not cost effective.
Still supported by the Manatee County Commission, the bridge was now opposed by the city councils of Anna Maria and Bradenton Beach. The executive director of the MPO mentioned that the Mayor of Holmes Beach reported that the city approved the 75-foot-high bridge, but this support was short-lived.
About 40 residents spoke at an MPO meeting on January 25, 1993; nearly all of them opposed the bridge. A SAM attorney argued that DOT's notice preceding the August 1989 public hearing had been defective. Following discussion, with some support for a 45-foot-high bascule bridge, the MPO voted 10-4 to recommend that DOT proceed with the 75-foot-high bridge.
Meanwhile, DEP was again expressing concern about the proposed project. By letter dated January 21, 1993, to James Wilt, the DOT district permit engineer responsible for the bridge project, a DEP administrator in the Tampa office advised that he could not recommend the project for approval. Although the letter was not final agency action, it was sent "to allow applicant time to assess fully the further commitment of financial resources for this project."
By letter dated February 3, 1993, Mr. Wilt informed the DEP administrator in Tampa that DEP had long known of seagrass impacts from the proposed bridge in the southern alignment. The February 3 letter complains that DEP neglected to mention the possibility that the bridge project might not be permitted in a September 1992 letter stating that the application was complete or in a December 1992 letter stating that processing of the application had begun.
The February 3 letter also complains that a DOT representative called DEP in late December "to inquire about the anticipated date of issuance of the Dredge/Fill permit. [She] was advised that a final field review of the site had to be conducted and the DOT could expect to receive a permit the 2nd or 3rd week in January, 1993."
Concluding the February 3 letter, DOT warned DEP:
Based upon the early and extensive coordination that has occurred on this project, the absence of any adverse comments during the processing
of the application and the fact that DER estimated the issuance of a permit in January of this year, anything other than the issuance of a permit for the southern alignment is unacceptable.
On February 10, 1993, DEP issued a Notice of Permit Denial, stating that the proposed bridge would "run directly through the most productive and prolific seagrass nursery areas and impact approximately 2.5 acres of productive shallow bottom." Noting that DEP had expressed concerns about the likely inadequacy of mitigation three years earlier, it had recommended that any new bridge be located at the current location.
The Notice of Permit Denial acknowledges that DEP had found the proposed project consistent with the Florida Coastal Management Program, "pending a more detailed review during the permitting stage." However, DOT had failed to substantiate its assurances to offset seagrass impacts, according to the Notice of Permit Denial.
The Notice of Permit Denial reports that DEP expressed "significant concerns" about the project in January 1990, including the concern that DEP "'could not expect the applicant to be able to provide reasonable assurances that they could offset the loss of this valuable resource (seagrass beds) through mitigation.'" Thus, DEP recommended that the proposed bridge should be located at the location of the existing bridge.
The Notice of Permit Denial denies the application because DOT failed to provide reasonable assurance that the project would be clearly in the public interest and would not significantly degrade Outstanding Florida Waters. DEP found that the project would be adverse to endangered species and threatened habitats, adverse to fishing and marine productivity, and adverse to the current condition and relative value of functions being performed because nutrient assimilation would be reduced by the loss of at least 2.5 acres of seagrass serving as viable nursery area.
DEP also concluded that DOT had failed to provide a plan to protect Class II, Outstanding Florida Waters, from significant damage or to provide reasonable assurance that the project would not result in the violation of water-quality standards. The Notice of Permit Denial notes in particular that the project could not lawfully reduce below ambient conditions the following water-quality parameters: biological oxygen demand, dissolved oxygen, iron, mercury, nutrients, phosphorus, turbidity, zinc, and biological integrity.
On April 27, 1993, the City Council of Anna Maria voted unanimously to reject the proposed bridge. On May 4, 1993, the City Council of Holmes Beach voted 4-1 to reject the proposed bridge. The mayor vetoed the resolution, and the City Council overrode the veto.
On July 4, 1993, the Sarasota Herald-Tribune published the results of a survey asking if readers preferred replacing drawbridges on the Intracoastal Waterway with fixed-span, high- level bridges. The results were 73 percent favored replacement and 26 percent opposed replacement. The newspaper reprinted about 75 responses, ranging in emotion between the following:
Yes. Don't let the old-timers sway the decision. Let's go with the modern time. Some of them will be long gone before the bridge is completed.
No. Keep the unique and lovely part of our country as it was when you were first attracted to it--or move away.
Environmental work on the proposed project stepped up after DEP denied the permit. On July 13, 1993, Peninsula forwarded to DEP the Seagrass Mitigation Plan, which later became part of the permit.
At the same time, responding to public concerns about wind safety on high-level bridges, DOT retained Dr. Robert C. Sheets, former director of the National Weather Service, to advise on the effects of high winds at high
elevations. Dr. Sheets explained why the higher bridge did not pose a significantly greater risk to bridge users than the lower bridge.
According to Dr. Sheets, the vertical exchange of energy characteristic of predominantly convective storms like thunderstorms and hurricanes precludes much difference in wind speeds at the two heights in question. The difference in wind speeds during nonconvective storms like "no- name storms" or "storms of the century" is larger, but still not great. No-name storms lack the vertical exchange of energy of hurricanes and thunderstorms, so wind speeds at 75 feet are greater than at 25 feet. Local emergency management and law enforcement officials would close any bridge when wind speeds at the deck reach 45 miles per hour. A 75-foot-high bridge might encounter such winds in nonconvective storms about 20 minutes earlier than would the 25-foot-high existing bridge.
In June 1993, Petitioners filed a petition alleging, among other things, that DOT's notice preceding the August 1989 public hearing was legally insufficient because DOT failed to send it to owners of condominiums within 300 feet of the proposed project. Abating any proceedings on the petition, DOT decided to conduct another public hearing on the project. Agreeing to requests of residents to schedule the public hearing in the fall when seasonal residents could attend, DOT scheduled the public hearing for October 26 and 27, 1993.
On October 1, 1993, DOT mailed letters to all required persons, including owners of condominiums within 300 feet of the proposed project, advising them of the times, dates, and locations of the public hearing on October 26 and 27, 1993. DOT also advertised the public hearings. The letter and advertisement state:
This hearing is being conducted to solicit
input from area residents, local public officials, and other interested persons or organizations relative to the location, design, and social, economic and environmental effects of the
proposed improvements. . . . The purpose of the project is to replace the existing bascule bridge with a fixed-span high level bridge.
To encourage public participation, DOT conducted one public hearing on the mainland and another public hearing on the island. The two public hearings were really a single, two-day public hearing. About 200 persons attended the October 26 hearing in Bradenton and 550 persons attended the October 27 hearing in Holmes Beach.
The hearing format for both nights was identical and tracked DOT's typical practice in conducting public hearings, such as the August 1989 hearing. However, each hearing began, after a brief introduction, with an eight-and-one- half minute videotape instead of a live project description. During a break following the videotape, persons in attendance could talk to representatives of DOT and the consultants and ask them questions off the record. The final part of the hearing was devoted entirely to recorded comments from the audience.
At the start of the first night's hearing, the DOT representative identified the fixed-span, high-level bridge as DOT's preferred alternate, stating:
The reason for holding the public hearing and the purpose of this public hearing is to allow you to present to us any new, any additional information that has not been considered in the past and was not looked at during the study that was held some several years ago on this bridge.
At the start of the second night's hearing, the same DOT representative said: "This public hearing . . . involves the replacement of the Anna Maria Bridge. . . . The proposed improvement involves a replacement of the
. . . Anna Maria Bridge with a 65-foot minimum clearance, high level, fixed span bridge."
The DOT representative added, referring to the fixed- span, high- level bridge:
. . . We refer to this as the DOT preferred alternative. It has been said that you did not have the choices that you hear that others
have. The public hearing that was held, several people in this room remember that were there about five years ago, presented many different alternatives at that time.
In the normal course of a project development and environmental study allows us to go through many different alternatives, and through the weeding out process we then select a preferred alternative based on all of the elements that
we can possibly get into in making this decision.
We did that. The preferred alternative was chosen and what we have here tonight, for you tonight is the preferred alternative, two level, high level-- 2-lane, high level, fixed bridge. With that, we will now have the presentation.
The professionally produced videotape features background music, narration, computer graphics, and skilled editing and cinematography. The videotape begins by stating that DOT has determined the "aging drawbridge to be functionally obsolete because it fails to meet current design standards and has no emergency shoulders for breakdowns."
The narration explains that traffic congestion is compounded by bridge openings for marine traffic. The videotape generates an artificial tone of anxiety by fast editing of closeups of existing road traffic and the drawbridge warning light, then zooming in ominously on the warning light and chipped-away concrete revealing steel-reinforcing bars.
The narrator tells the audience that these obsolete conditions led DOT to recommend replacing the bridge. As the videotape explains, "Several alternatives were considered when plans for upgrading the Anna Maria Island Bridge were made." The videotape identifies these alternatives as the no-build option, north alignment, and south alignment.
The videotape states that the no-build alternative would require extensive and expensive repairs, including the complete renovation of the
drawspan and extensive substructure, but this is not economically viable. A new bridge using the existing alignment would eliminate Manatee Avenue access to Anna Maria Island for two years. The north alignment would impact the nearby boat ramp and require a new navigational channel, which would destroy seagrass.
The videotape reports that the preferred alternative is the south alignment, which "affects about one and one-half acres of seagrass" that "will be closely monitored." The videotape assures the viewer that the "Florida Department of Transportation is committed to minimizing impacts to the seagrass in the project area." The narration and block letters on the screen add: "The benefits of the recommended alignment constitute the most favorable balance of environmental concerns, welfare of the community and achieving the objective of providing a modern and effective bridge."
The videotape mentions that drawbridges require regular openings to allow vessel passage. A computer-graphic rendering of the bascule opening shows the bridge opening quickly without a gate or warning lights, a bus suddenly stopping less than a bus length from the vertical bridge span, and a convertible car stopping quickly behind the bus with a second car immediately queuing up behind the delayed bus and car passengers.
The videotape concedes that a mid-level bascule bridge would "alleviate much of the traffic delay," but warns that it is a "greater financial burden." The videotape states that the initial construction cost of a drawbridge would be $11.4 million, and the annual operation and maintenance costs of a drawbridge average at least $150,000 plus a $500,000 major repair job every 20 years.
On the other hand, the videotape states that the cost of a fixed- span, high-level bridge would be $8.4 million, so the preferred alternative would save at least $3 million over the life of the project.
The videotape displays a sailboat with a mast under 65 feet cruising under the proposed bridge just as emergency vehicles pass cars pulled over onto the spacious shoulder. To the extent of any implication that emergency vehicles could be delayed by an opened drawbridge, the videotape ignores the radio coordination that exists between such vehicles and the bridge tenders.
The videotape next considers emergency evacuations. Noting that wave effects and flooding on approaches would more likely close a bridge than would high winds, the videotape warns of conflicts between marine vessels and vehicles during evacuations. This warning ignores the Coast Guard practice not to order bridge openings so as to interfere with evacuations and the effect of the need of islanders to get off the island early due to the flooding of island roads and bridge approaches, typically well in advance of the worst of the storm.
Displaying photographs from the same perspective of the existing bridge and the proposed bridge superimposed by computer, the videotape assures that "the bridge blends gracefully with the surrounding area." One photograph depicting the proposed bridge was on display with a photograph displaying the existing bridge, both as seen from the east, slightly south of Manatee Avenue. The actual photographs were also on display at the public hearings.
The obvious purpose of the two photographs was to encourage viewers to compare the two bridges. However, the comparison was distorted so as to underrepresent the size of the proposed bridge.
The photograph of the proposed bridge was taken with a wide-angle lens with the sides cropped, which removed the distortion and extra field of vision accompanying a wide-angle photograph. Because the photograph of the existing bridge was taken with a normal lens, the photograph of the proposed bridge underrepresented its height and width by 20 percent relative to the height and width of the existing bridge.
The videotape concludes:
An aesthetically appealing and environmentally sound structure that safely spans the Intracoastal Waterway is the Department's goal. A bridge that blends with the unique ambience of this island paradise while guaranteeing Manatee County's residents and visitors safe and efficient travel is of paramount importance to us all.
Though not unanimous, public comment at the public hearings was vastly against the proposed project. Figg and Muller summarized the comments by stating that 374 persons favored the project and 940 persons opposed the project. The most popular reasons against the new bridge were in descending order: environmental problems, high-level wind problems, accelerated development, bad aesthetics, and failure to solve evacuation problems.
Among the oral or written comments were comments from an orthopedic surgeon who has lived in Holmes Beach for 24 years, opposed the proposed bridge, and said that the existing bridge had never been a problem in treating his patients on the mainland. The Manatee Chamber of Commerce supported the proposed bridge. The Mayor of the City of Anna Maria complained that DOT took its direction from the MPO, from which the island municipalities had been denied voting membership until late 1989 when they obtained one voting member. The mayor also complained of a bridge-by-bridge approach to bridge construction, rather than a regional plan addressing the uniqueness of the barrier island.
Mr. Crim testified at the January 1996 formal hearing in this case that DOT's position at the October 1993 public hearings, compared to the August 1989 public hearing, was "even more defined." Unless "something significant" came up, DOT was "going to build the bridge that it had already planned." Mr. Crim testified that the only other viable option at the 1993 public hearings was the no-build alternative.
After the public hearings on October 26 and 27, 1993, District Secretary May reported to the MPO, during its meeting of November 22, 1993, that comments were about 3-1 opposed to the bridge. The MPO voted 6-8 not to reconsider its support for the 75-foot-high bridge.
4. 1994-Present
Following the October 1993 public hearings, Petitioners filed a petition with DOT in January 1994 challenging DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The procedural history of this case is set forth in the Preliminary Statement and is incorporated by reference.
Between the October 1993 public hearings and the formal hearing in this case in January 1996, the MPO dropped the four-lane bridge from its 2020 needs plan based on updated traffic projections that indicate no need for the
additional capacity. The needs plan continues to limit Manatee Avenue to two lanes east of the Anna Maria Island Bridge to 75th Street, which is substantially east of the bridge. At the January 1996 formal hearing, Mr. Crim was unaware that the MPO had dropped from its 2020 needs plan the four-laning of Manatee Avenue over Sarasota Pass.
However, DOT policy is that once a project has reached a certain stage of development, which this proposed project has, it can only be stopped if both DOT and the MPO agree. As District Secretary May testified, DOT no longer begins the planning process with the MPOs, as it did here, but instead starts with local communities.
But even if the MPO voted to eliminate the proposed project, District Secretary May intends for DOT to proceed with the fixed-span, high-level bridge because, by the January 1996 formal hearing, DOT had spent over $2 million on the proposed project. DOT acceded to an MPO request to stop the Cortez bridge- replacement project, but this action preceded District Secretary May's appointment.
After more than two years of discussions with DOT following the Notice of Permit Denial, on May 2, 1995, DEP issued an Intent to Issue a dredge- and-fill permit for the demolition of the Anna Maria Island Bridge and construction of a fixed-span, high-level bridge on the originally proposed south alignment.
Intervenors filed petitions with DEP in June and July 1995 challenging DEP's Intent to Issue the dredge-and-fill permit. After the formal hearing in December 1995 and issuance of a recommended order recommending that DEP deny the permit, DEP has not yet issued a final order.
Ultimate Findings of Fact
DOT's Exercise of Discretion in Deciding to Replace the Anna Maria Island Bridge with a Fixed-Span, High-Level Bridge
The proposed project would permanently destroy 2.5 acres of seagrass and temporarily destroy 2.0 acres of seagrass. Proposed mitigation is vague, contingent, and ultimate illusory. Degradation of water quality is likely, and DOT never obtained the baseline water-quality data from which analysis must begin.
The proposed project would adversely affect the conservation of fish and wildlife, including endangered species and their habitats; adversely affect navigation on the Intracoastal Waterway for tall-masted boats currently using Sarasota Pass; and adversely affect fishing and recreation values by destroying vast areas of seagrass and removing the existing bridge as a popular area for fishing, bicycling, jogging, and walking. A permanent improvement, the proposed project would be sited in a productive marine environment performing crucial functions of feeding endangered manatee and other wildlife and cleaning Outstanding Florida Waters through nutrient assimilation and stabilization of sediments.
The proposed project would poorly serve important cultural and aesthetic concerns expressed by an overwhelming majority of island residents, who would be uniquely affected by the proposed project.
A large majority of the people of Anna Maria Island do not want the proposed bridge. The island-wide referendum conducted by the three municipalities in November 1992 reveals that opponents outnumber proponents by nearly a 4:1 margin.
Some residents reject the bridge because they believe that it is only the first of two bridges, which would double the lanes onto the island and result in greater traffic on the island.
DOT does not presently intend to build a second bridge, nor is the MPO seeking such a bridge at present. Some bridge opponents distrust DOT and the mainland-dominated MPO on this point, but the record does not indicate that such plans are presently under active consideration.
Most if not all residents opposing the bridge focus on the height of the proposed bridge from the perspective of wind safety, but these concerns are largely ungrounded.
However, the concerns of bridge opponents about the height of the proposed bridge extend beyond wind-safety issues. Some residents oppose the proposed bridge because they believe that it is unsuitable for their small island community.
A high-level bridge would not permit fishing from anywhere but the extreme ends. Many area residents--many of whom are older persons--who walk, bicycle, or jog on the existing bridge would find the 4 percent grade and bridge height forbidding. It is difficult to see how a single six-foot sidewalk on the proposed bridge would better accommodate walking, bicycling, jogging, and fishing better than the two five-foot sidewalks on the existing bridge.
Objections to the bridge height involve more than reduced access for nonmotorists. Except for one condominium permitted under prior law, nothing manmade on the island stands over 38 feet high. Bridge opponents claim that the size and appearance of the bridge would not blend well with the subdued appearance and casual ambience of their island.
Bridge opponents prefer their timeworn drawbridge, which allows motorists, bicyclists, and pedestrians to view the water just a few feet below them as they approach or leave the island. Better scaled to the island community, the drawbridge, occasionally interrupting vehicular traffic, provides a marked boundary between the island and the mainland. Such a boundary is less apparent from a wide expanse of new roadway across a fixed- span, high-level bridge, from which motorists, bicyclists, and pedestrians would have little if any view or feeling of the water separating the island from the mainland.
Most if not all bridge opponents resist the bridge as a dramatic alteration of the daily gateway to their community. These residents are trying to preserve the special lifestyle-- the pace and rhythm of their lives--that they sought in moving to the island in the first place.
At the same time, the reasons for the proposed bridge are insubstantial. Interestingly, DOT recently completed the rehabilitation of the Cortez Bridge. Abandoning earlier plans to replace the bridge, DOT instead repaired and rehabilitated the drawbridge without widening the bridge or bascule spans.
The Anna Maria Island Bridge has not proved unsafe over 37 years. Collisions on the bridge approaches are 50 percent more numerous than on the bridge itself. Superficial analysis of the accident data does not alter the fact that the bridge's accident rate is low. Most of the rear-end collisions on the bridge and bridge approaches are attributable to traffic backups from the Gulf Drive light and turns into the boat ramp on the west and convenience store and marina on the east. The drawbridge has not been a material cause of collisions on the bridge and bridge approaches, and the fixed-span, high-level bridge therefore would probably not reduce the number of collisions in this area.
If vehicular safety were a problem on the Anna Maria Island Bridge, the sensible response would be to analyze the data carefully. If, for instance, numerous collisions were at night, DOT should considering adding street lights to the bridge. If, as is likely, most of the rear-end collisions are attributable to traffic backups, then DOT should consider the effects of lowering the speed limit through an increasingly congested area with boat ramps, a marina, and a convenience store. Perhaps such a study would present DOT an opportunity to revisit the wisdom of maintaining a 50-mile-per-hour speed limit on a road segment that, to the west, quickly ends at the Gulf of Mexico on a narrow barrier island with constrained and congested roads and, to the east, passes through increasingly urbanized areas.
In promoting the proposed bridge, DOT has oversold the planning and design standards that arguably militate against the Anna Maria Island Bridge. In reality, these standards reveal that the decision to add shoulders is conditioned on consideration of numerous other factors, including the environmental, cultural, and aesthetic factors militating in favor of retaining the Anna Maria Island Bridge.
DOT claims that the Anna Maria Island Bridge is functionally obsolete in large part due to the absence of shoulders or breakdown lanes on the bridge. Although the safety of a road segment is enhanced by the presence of breakdown lanes, the added margin of safety is not as great as DOT implies in this case. Countering suggestions of greater safety, the shouldered approaches to the bridge have experienced 50 percent more collisions than the unshouldered bridge.
The record contains three sources of design standards for bridges: DOT's Index No. 700 or Design Criteria Related to Highway Safety, dated September 1991 (SAM Exhibit No. 123); Chapters 1 and 2 of Volume I of DOT's Plans Preparation Manual (SAM Exhibit No. 126); and the 1990 standards of the American Association of State Highway and Transportation Officials (AASHTO) (SAM Exhibit No. 105).
The Plans Preparation Manual specifies that through lanes should be "as wide as practical, up to 12 feet." Index No. 700 specifies that clear widths for bridges with undivided travel lanes on urban arterials with design speeds of 30-50 miles per hour, such as this road segment, should be the "travel lanes plus approach shoulder widths."
The introduction to Chapter 1 of the Plans Preparation Manual states that projects
are normally based on established design standards for the various elements of the project, such as width of roadway . . .. Selection of the appropriate standards is influenced by traffic volume and
composition, desired levels of service, terrain features, roadside developments, environmental considerations and other individual characteristics.
Addressing the aesthetics of road projects, Chapter 1 states that the designer should consider, after functionality, how a highway will be perceived by users, ensuring that "[h]orizontal and vertical alignment should be coordinated so that a driver has an opportunity to gain a sense of the local environment."
Notes to Index No. 700 stress the conditionality of the design standards. One note states: "Values shown above shall be used on all new construction and on reconstruction projects to the extent that economic and environmental considerations and [right-of-way] limitations will allow." Another note adds for clear zones:
Standard values are to be used for all new construction projects. These values may be reduced only where individually justified to mitigate critical social, economic, and environ- mental impacts or to lessen right-of- way costs. Standard values are also to be used for recon- struction projects; however values down to AASHTO minimum may be used where individually justified due to critical social, economic and environmental impacts and/or excessive right-of-way costs or
when existing roadside obstacles are not considered hazardous as evidenced by field review and by accident history or accident potential.
AASHTO standards call for a minimum width of the travel lanes plus three feet per side. But AASHTO standards recognize that
reasonably adequate bridges . . . that meet tolerable criteria may be retained. Some of
the nontechnical factors that should be considered are the esthetic value and the historical signifi- cance attached to famous structures, covered bridges, and stone arches.
The bridge approaches have eight-foot gravel shoulders, although no design shoulders. However, the design standards do not require bridge shoulders of eight feet or even three feet without consideration of environmental, aesthetic, social, and economic factors.
After consideration of all the factors, the cited design standards do not mandate the widening of the existing bridge to add shoulders.
As for the failure of the Anna Maria Island Bridge to meet current load standards for bridges, the AASHTO minimum design standard for new bridges "should be HS-20." The existing bridge is rated HS-15.
However, the same conditions attach to the load standard of a bridge as apply to the presence and width of shoulders. HS-15 is a "tolerable" criterion. There is nothing in the record suggesting that the current load limit of the Anna Maria Island Bridge is unsafe. If DOT were concerned about the load capacity of the bridge, it would have imposed weight limits on the
bridge. After consideration of all the factors, the design standards no more call for a new bridge to increase the load rating to HS-20 than they call for adding shoulders to the bridge.
As for the failure of the Anna Maria Island Bridge to meet current ship-impact standards, the record does not clearly establish that the existing bridge fails to meet these standards. Even if it fails to meet these standards, the VE team itself recommended relaxing the H-20 bridge-impact standard outside of the channel, partly based on the faultless marine safety record of the bridge and the availability of alternative access to Anna Maria Island. Even DOT does not cite a 25 percent improvement in ship- impact resistance as a compelling reason, in isolation, for a new bridge.
The Draft Preliminary Engineering Report contends that the Anna Maria Island Bridge should be replaced due to its low overall clearance. But the proposed bridge would effectively close the Intracoastal Waterway at Sarasota Pass to a growing number of sailboats that can presently navigate the pass. And there is no evidence that the 36 daily bridge openings unduly delay vehicular traffic, especially in view of the traffic delays already caused by the traffic light at Gulf Drive.
The Final Preliminary Engineering Report adds two more reasons for replacing the Anna Maria Island Bridge. The first is the need to accommodate traffic increases. However, updated analysis has reduced traffic projections, and the proposed bridge is now clearly limited to two lanes in any event.
The second reason cited in the Final Preliminary Engineering Report is "structural deficiency." There is absolutely no evidence in the record suggesting that the Anna Maria Island Bridge is structurally deficient. Nine months prior to this statement appearing in the Final Preliminary Engineering Report the VE team inspected the bridge and found it was in "good condition" with "no severe deterioration which would endanger the capacity of the bridge." Coming from engineers, the assertion that the bridge is "structurally deficient," without support or qualification, was irresponsible.
The driving force behind DOT's decision to replace the Anna Maria Island Bridge seems to be cost. DOT contends that it is less expensive to replace the Anna Maria Island Bridge now than it is to rehabilitate and repair it for the remainder of its useful life.
When built, the Anna Maria Island Bridge had a life expectancy of 50 years. The bridge remains in "good condition," and traffic demands on this segment of Manatee Avenue can be satisfied by two lanes for a period in excess of the remaining useful life of the bridge.
DOT projects the cost of the new bridge at $8.4 million. However, DOT has spent $2 million without commencing construction and still has not identified aspects of construction that might be dictated by environmental concerns, such as the construction of work platforms or use of specialized demolition techniques. The $8.4 million figure is probably low.
The $8.4 million projection for the proposed bridge is definitely low once environmental costs are considered. Perhaps incapable even of approximation as to lost seagrass beds, degraded water quality, and reduced wildlife, including manatee, environmental costs can be partly quantified in terms of lost recreational opportunities, property values, and business income
in the event of degraded waterbodies and increased governmental expenditures to reverse environmental degradation.
It is even more likely that DOT's cost figures for retaining the Anna Maria Island Bridge are high. DOT projects
"minor" (i.e., without widening) rehabilitation costs for the Anna Maria Island Bridge as
$2.0-$3.8 million. They are based on general experience, which has not proved reliable for this bridge. General experience suggests that a bridge of this type and vintage should have needed to be rehabilitated at 20 years; yet,
37 years later, still without such a rehabil- itation, the Anna Maria Island Bridge remains in good condition.
The Anna Maria Island Bridge could benefit from a "minor" rehabilitation costing at least $500,000. This probably would be the only substantial rehabilitation required for the remaining useful life of the bridge.
DOT typically replaces rather than rehabilitates when rehabilitation will cost at least 60 percent of the cost of replacement. If so, using DOT's numbers, replacement would not be indicated unless rehabilitation were to cost over $5 million.
Several provisions in the state comprehensive plan tend to sustain DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Three of these provisions are in the transportation section of the state comprehensive plan calling for transportation planning to manage growth, enhance system efficiency, and ensure efficient access to services, jobs, markets, and attractions. A provision in the public facilities section calls for planning and financing new facilities in a timely, orderly, and efficient manner.
These provisions favor the new bridge only to the extent of a need for the new structure. Absent a need, some of these provisions, such as favoring timely and efficient planning of new facilities, actually militate against the new bridge because DOT could advance the funding of another, needed project if it did not spend the money on the replacement bridge.
Arrayed against these provisions of the state comprehensive plan are numerous other provisions clearly disfavoring the new bridge. Some of these provisions are in the sections on transportation and public facilities. One provision admonishes that, in addition to enhancing system efficiency, it is also important to minimize adverse environmental impacts. Another transportation provision is to promote timely resurfacing and repair of roads and bridges to minimize costly reconstruction and enhance safety.
A final applicable transportation provision is to avoid transportation improvements that encourage increased development in coastal high-hazard or productive marine areas. According to the Draft Preliminary Engineering Report, the proposed bridge "could foster economic development in the area," meaning the barrier island.
Provisions in the section on public facilities are to protect substantial investments in already-existing public facilities and promote
rehabilitation and reuse of existing facilities rather than commence new construction.
Numerous provisions of the state comprehensive plan disfavor the new bridge on environmental grounds. Florida must ensure that development in coastal areas does not endanger important natural or marine resources and must protect and restore long-term productivity of marine fisheries habitat and other aquatic resources. Other provisions are to conserve wetlands, fish, and marine life to maintain their environmental, economic, aesthetic, and recreational values; to prohibit the destruction of endangered species and protect their habitats; and to protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. One provision explicitly links Florida's environmental health with its economic health by requiring that Florida maintain the environment as one of its primary economic assets.
The proposed bridge project is inconsistent with the state comprehensive plan, taken as a whole. The proposed project disregards the requirements to rehabilitate and reuse existing facilities where possible, to avoid transportation improvements that encourage development in coastal high- hazard areas, and to repair and resurface roads and bridges in time to avoid more costly expenses. The inconsistencies between the proposed project and environmental provisions of the state comprehensive plan are evident.
Another group of provisions disfavors on a different basis the decision to replace the Anna Maria Island Bridge with the new bridge. These provisions call for improved intergovernmental coordination, maximized citizen involvement, and encouraged citizen participation at all levels of policy development, planning, and operations.
The record does not support a finding that DOT seriously addressed the various elements in the state comprehensive plan that must guide state agencies in their capital expenditures. In so doing, DOT undermined citizen participation in this important planning process. DOT and its consultants collected some environmental data, but too little, too late. Also, DOT never subjected the environmental data to detailed, careful analysis.
Motivated by cost considerations, which offer scant support for the proposed bridge project, DOT sought to replace old drawbridges and wanted to replace them as inexpensively as was reasonably possible.
In pursuing its drawbridge-replacement policy in this case, DOT did not assess sufficiently the relevant environmental, cultural, and aesthetic factors. This failure undermined citizen participation and the planning process itself.
For instance, before collecting the detailed seagrass data in June and July 1992, DOT had already proceeded far into the planning for the present project, rejecting the no-build alternative, selecting the south alignment, and possibly selecting the fixed-span, high-level design. Yet, informed consideration by DOT and the public of all of the alternatives demanded early knowledge of the area and functions of seagrass to be destroyed by the project.
The seagrass issue came as no surprise to DOT. Sarasota Pass is Outstanding Florida Waters. A DOT representative had warned other DOT representatives in July 1989 that they had not had much success with seagrass mitigation. Over a year earlier, at the very inception of this long planning
process, Figg and Muller amply identified in its subconsulting contract with Peninsula the various environmental problems posed by this project. In early 1990, DER warned DOT about the importance of seagrass and mitigation. Yet, DOT elected to avoid federal environmental review by obtaining in mid-1990 a categoric exclusion on the basis that the proposed supposedly had no significant impact on any natural, cultural, or recreational resources and had no significant impact on water quality.
Instead of seriously confronting the seagrass issue, Sverdrup twice tried to influence Figg and Muller and its subconsultant to understate the amount of seagrass that would be destroyed by the proposed project. These efforts are not merely unreasonable in retrospect, but were unreasonable at the time, as evidenced by the angry reaction of the Peninsula employee and the more businesslike resistance of Figg and Muller. The resulting atmosphere was not conducive to a vigorous investigation of environmental conditions and thoughtful analysis of the impact of the proposed alternatives on these conditions.
DOT and its consultants never obtained much data that various parties demanded. When entering into the subconsulting contract with Peninsula, Figg and Muller required Peninsula to do an analysis of bottom sediments for heavy metal concentrations, but this was never done. In early 1990, DER warned DOT about the strict water-quality standards applicable to the project. Yet, DOT and its consultants never obtained vital water-quality data. Still in the first half of 1990, DEP recommended that DOT obtain a bathymetric survey, which DEP promised to review in detail at the permitting stage. But DOT and its consultants never obtained this crucial data either.
In fact, it was not until two years later--after DOT had rejected the no-build alternative and south alignment, if not also the bascule designs--that Peninsula obtained seagrass data of the level of detail even approaching what DEP had sought.
The treatment of manatee in the planning process was also inadequate. Omitted entirely from the Draft Preliminary Engineering Report, manatee were discussed in later documents. But at no time did any consultant address two distinct threats posed to manatee by the proposed project.
First, the wider-spanned bridge would, as promised by the Draft Preliminary Engineering Report, enhance navigation for shallow-drafter boats by facilitating their bypassing of the channel and cutting under the bridge. In addition to destroying seagrass by prop dredging, small boats cutting under the bridge would threaten manatee feeding in shallow water in exactly the manner described in the Permit Coordination Package.
Second, construction of the new bridge would effectively narrow the pass, which has already been constricted
by fill placed when the Anna Maria Island Bridge was built. This would drive manatee into a narrower area within the channel and increase the chances of injury from collisions with boats. 335. More than once in this planning process, DOT and its consultants tried unreasonably to wring support for the proposed project from unfavorable data and analysis. Mr. Smith's attempts to coerce the analysis of seagrass losses is perhaps the most glaring example of this unfortunate treatment of data and analysis. Another Sverdrup representative discouraged independent analysis of new traffic data by Figg and
Muller when he sent Figg and Muller a memorandum with the instructions to analyze and document the data "to reach the conclusions necessary to proceed with the project development."
A more pervasive example of this practice is in the treatment of the accident data. In the Site Characteristics Report prepared at the end of 1988, the consultants noted the low accident rate of the Anna Maria Island Bridge and suggested reasonably that the high percentage of rear-end collisions might be due to traffic backups, which might be due to backups from the Gulf Drive traffic light, nearby left turns, or drawbridge openings.
A month or two later, in the Draft Preliminary Engineering Report, Figg and Muller tried, without detailed analysis of accident reports, to limit the effects of the boat ramp, marina, convenience store, and traffic signal to rear-end collisions on the approaches and attribute rear-end collisions on the bridge to the opening of the drawbridge. A later reference in the draft report to accident data "for the existing facility" is misleading for its failure to differentiate between the bridge and the bridge approaches. By the August 1989 public hearing, the Figg and Muller representative was telling the public that the drawbridge openings were a cause of a "significant number" of rear-end collisions. No evidence supports this conjecture, which does not rise to the level of analysis.
DOT and its consultants failed to substantiate other vehicular safety concerns when they failed to account for the coordination that exists between drawbridge openings and emergency vehicles and drawbridge openings and hurricane evacuation. Yet, DOT and its consultants continued to cite these nonissues, like they cited rear-end collisions, prominently in their arguments about functional obsolescence and safety, at least through the rejection of the no- build alternative in the Final Preliminary Engineering Report issued on November 1, 1989.
At the formal hearing, DOT tried to bolster its safety arguments with two new arguments that are hopelessly anecdotal. DOT presented evidence that bridge tenders are susceptible to crime: a DOT witness testified that the shelter of a bridge tender in Dade County was pockmarked by numerous bullet holes. Another DOT witness testified that a bridge tender was crushed by the gears of a drawbridge he was trying to fix when the power company suddenly restored power after an outage.
Neither narrative establishes widespread problems with drawbridges. There is nothing to suggest that a bridge tender on the Anna Maria Island Bridge must contend with drive-by shootings. If so, motorists and other users of the bridge might be safer if a bridge tender were available to telephone the police. The death of the bridge tender crushed by the drawbridge gears was tragic, but easily avoidable simply by shutting down the power to the bridge before working on it.
Likewise, DOT tried at the formal hearing to support the functional- obsolescence argument by contending that the additional lanes would hasten evacuation efforts by the ability to convert to more lanes one-way east. But island evacuation does not require the addition of two shoulders that could be converted into travel lanes during evacuations. Successful evacuations have taken place with the existing bridge, whose two lanes can be used one-way east in emergencies. The two-lane bridge is not a bottleneck considering the two- lane facility to the east and the floodprone bridge approaches and island road system to the west.
DOT's premature commitment to project implementation discouraged objective analysis of the data. Nor was DOT receptive to DEP's role in reviewing the proposed project.
When DER withdrew its early objections to the Advance Notification Package in April 1990, it promised a more detailed review during permitting.
But the Final Engineering Report in early 1991 sounded what proved to be an ominous note when it stated that, based on the agreement with DER, DOT had spent about $1 million of public funds on the completion of the PD&E process and final design of the new bridge.
Not applying for permits when the design work was 65- 70 percent complete, as directed by the PD&E, DOT waited instead until August 1992, when the final design and construction plans for the project were 90 percent complete. When DEP expressed concern about the project, DOT, ignoring another opportunity to focus on the substantive environmental and public welfare issues, responded instead with an insubstantial estoppel argument and stern warning that "anything other than the issuance of a permit for the southern alignment is unacceptable."
Not every transportation project will serve all provisions of the state comprehensive plan. Some planning processes and decisions may even conflict with more provisions of the state comprehensive plan than they serve, but still not conflict sufficiently with the entire state comprehensive plan, construed as a whole, to constitute an abuse of discretion.
But in this case, the proposed project is marginally consistent with a few provisions and markedly inconsistent with numerous, material provisions of the state comprehensive plan. And the inconsistencies appear to be the direct result of the repeated failures of DOT and its consultants to collect necessary data and their repeated efforts to wring support from unsupportive data and analysis. These inconsistencies with the state comprehensive plan amount to an abuse of discretion in deciding to replace the Anna Maria Island Bridge with the fixed- span, high-level bridge.
DOT's Compliance with the Statutory Requirement of Public Hearings, Including Effective Public Participation, Prior to Selecting, Locating, and Designing the Fixed-Span, High-Level Bridge
The replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge is a major transportation improvement. The proposed bridge would cost millions of dollars, destroy 2.5 acres of seagrass permanently and
2.0 acres of seagrass temporarily, imperil manatee, and degrade Outstanding Florida Waters. The proposed project has generated considerable public controversy, which triggers the requirement of a public hearing in the PD&E manual. The proposed project is a "major transportation project," under the definition in the PD&E manual requiring an environmental impact study. Sverdrup's Project Concept Report calls the proposed project a "major bridge replacement project."
DOT was amenable to public input on all issues at the February 1989 workshop, but there is no indication that DOT provided sufficient notice as to permit the public to participate effectively.
DOT was clearly amenable to public input at the August 1989 public hearing as to the location of the proposed bridge. DOT still was in the formulative stage of deciding the alignment of any new bridge. DOT opted for the south alignment only after hearing public comments concerning the impact of the north alignment on navigation, recreation, and business.
The notice for the August 1989 public hearing, though insufficient to satisfy the statutory requirement for a design public hearing, was reasonable in that it was sufficient to satisfy the requirement of effective public participation.
It is less clear that DOT had not, prior to the August 1989 public hearing, already selected the facility-type--namely, a new bridge over the no- build option. But Petitioners and Intervenors failed to show that DOT had in fact already made this decision before the August 1989 public hearing. DOT announced the rejection of the no-build alternative on November 1, 1989, in the Final Preliminary Engineering Report. Although Mr. Smith's June 13, 1989, memorandum to Figg and Muller recommended the rejection of the no-build alternative, Figg and Muller proved able to resist Sverdrup's suggestions as to seagrass losses, and other evidence does not point clearly to an earlier rejection of the no-build option.
But the preponderance of the evidence establishes that, long prior to October 1993, DOT had selected and committed to the design of the new fixed- span, high-level bridge over such alternatives as a low-, mid-, or high-level bascule bridge.
DOT representatives and consultants thought that they had already conducted the design public hearing four years earlier. Only in early 1993 did DOT decide to hold another design public hearing after reconsidering the legal sufficiency of the notice before the August 1989 public hearing. So, for at least three and one-half years, DOT and its consultants operated on the assumption that DOT had satisfied the requirement of a design public hearing and could proceed to the next step. It is unreasonable to expect, given DOT's strong commitment to project implementation, that the project did not proceed through design in these three and one-half years.
DOT spent $1 million on planning and design for this project through the Final Engineering Report issued on November 1, 1989. If the total cost of the fixed-span, high-level bridge on the south alignment was to be $8.4 million and construction had not yet begun, one would infer that the $1 million covered a lot of the required design. By the formal hearing in January 1996, DOT had spent $2 million on the proposed bridge. Although part of that sum may have gone toward litigation expenses, most of it presumably went toward additional design and construction planning.
Additional evidence that DOT selected the design prior to the October 1993 public hearings comes from two sources: the preparation of documentary milestones in the planning process and statements of DOT representatives.
According to the PD&E manual, DOT issues the Final Engineering Report after the public hearings and selection of the recommended alternate. The Final Engineering Report, which was issued in late 1990 or early 1991, follows the approval by the Federal Highway Administration of the recommended alternative, according to the PD&E manual. According to the PD&E manual, DOT applies for permits when the project design is 65-70 percent done. In August 1991, DOT applied for permits after retaining Figg and Muller in mid-1991 to prepare final
design and construction plans. All this time, the Draft Preliminary Engineering Report had all but eliminated bascule alternatives in February 1989.
Public comments of DOT representatives disclose with greater certainty than milestone documentation the design progress on this project. As early as March 31, 1989, Sverdrup advised Figg and Muller not to do traffic calculations for bascule alternatives "since it is evident that the fixed high- level structure will be recommended due to lower overall cost." Later comments consistently portray the bridge design as finished or all but finished by the end of 1992 and start of 1993; there is no doubt that DOT had selected and committed to a design by this time.
When DOT submitted the dredge-and-fill application in August 1992, final design and construction planning was 90 percent complete, according to Mr. Crim. On December 1, 1992, District Secretary May, sensing increasing community resistance to the proposed bridge, acknowledged local resistance to the "design" of the replacement bridge and directed Mr. Crim that "we will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project 'production ready' as rapidly as possible."
On January 8, 1993, a DOT representative told MPO representatives that construction plans were 95 percent done and acquisition of right-of-way had begun. Referring to the new bridge, District Secretary May told a meeting of local government officials on January 19, 1993, that "it's been designed" as a fixed-span, high-level bridge. He stated that 100 percent of the design work was done and changing to a 45-foot bascule bridge would mean that DOT had thrown away $1 million on design work. According to Mr. Crim, the options at the October 1993 public hearing were the fixed-span, high-level bridge or the no- build alternative; the bridge design was thus no longer in doubt.
DOT's misplaced reliance on the August 1989 public hearing as a design hearing did not preclude the possibility that DOT could have conducted a design public hearing at a later date with effective public participation. The key factual questions would be whether DOT had already decided upon a design and, if so, whether it had restarted the design-selection process so as to approach the curative public hearing with no precommitment toward the fixed- span, high-level design.
It is unnecessary to explore in any detail what restarting the design selection process would entail. DOT could have approached the October 1993 public hearing differently than it approached other public hearings. DOT could have engaged the public, on the record, in a give-and-take analysis of the engineering, traffic, environmental, cultural, and other data. DOT could have abandoned its customary approach requiring the public to show an error, an omission, or changed conditions, or else DOT's tentative decision would become final.
Instead, DOT approached the October 1993 public hearing, as Mr. Crim admitted, with an "even more defined" position than usual. Unless something "significant" came up at the hearing, the fixed-span, high-level bridge was going in. Presenting a blatantly promotional videotape and a distorted comparative photograph, DOT tried to rescue the $1-2 million it had invested in this project rather than risk a wide-ranging public discussion on the design of the proposed bridge with a meaningful exchange of information and analysis. The resulting burden placed on the public to change DOT's mind was inordinate, precluded effective public participation, and revealed DOT's commitment to the fixed-span, high-level design.
CONCLUSIONS OF LAW
General
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Petitioners and Intervenors have standing. They reside on Anna Maria Island, and all of them regularly use the Anna Maria Island Bridge. They would be directly and uniquely affected by the replacement of Anna Maria Island Bridge with a fixed-span, high-level bridge. The environmental, cultural, and aesthetic impacts to Petitioners and Intervenors raise the type of issues to be addressed in challenges to transportation projects, such as presented by this case. Additionally, the involvement of Petitioners and Intervenors in the planning process indicates that they would uniquely benefit from enhanced public participation.
Petitioners and Intervenors have the burden of proving by a preponderance of the evidence that: 1) DOT abused its discretion in deciding to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge or 2) DOT violated the statutory requirement of public hearings with effective public participation prior to selecting, locating, and designing the fixed-span, high- level bridge.
DOT's Exercise of Discretion in Deciding to Replace the Anna Maria Island Bridge with a Fixed-Span, High-Level Bridge
Section 334.044(1) authorizes DOT to coordinate the planning of a safe, viable, and balanced state transportation system.
In Lopez-Torres v. Department of Transportation, 488 So. 2d 848 (Fla. 4th DCA 1986), DOT proposed to replace a 40- year-old, 10-foot-high, 20-foot wide bascule bridge with a four- lane, 25-foot-high bascule bridge. DOT proposed to build the new bridge in the Town of Ocean Ridge, about 700 feet north of the existing bridge.
A hearing officer ruled as a matter of law without an evidentiary hearing that DOT could not rebuild the bridge in Ocean Ridge because the municipality had disapproved of such a relocation in its comprehensive plan. DOT entered a final order reversing the recommendation and directing that the new bridge be built at the new location.
Reversing the final order, the Fourth District Court of Appeal held that DOT did not comply with the statute when it ruled on the case as a matter of law. Noting that Section 339.155(2) requires DOT to consider many factors in developing a statewide transportation plan, the court ordered the hearing officer to "consider all the matters in the file and any other evidence or testimony which the petitioners or the respondents seek to introduce." 488 So. 2d at 854.
The Fourth District Court of Appeal certified three questions to the Supreme Court: whether the Legislature has preempted municipalities from exercising any control over the establishment of state roads and bridges; whether DOT has the authority to route a state road bridge through or into a
municipality in conflict with the local government's comprehensive plan; and whether DOT's procedural standards justified its decision.
Dissenting, Judge Anstead suggested that the court should hold merely that the local comprehensive plan did not bar DOT from building the replacement bridge. He stated that there was no showing in the appeal that DOT had failed to comply with any statutes, including those calling for public hearings and consideration of local conditions. Questioning why DOT should have to restart what had already been a long planning process in which objectors had been given ample opportunity to be heard, Judge Anstead asked:
What are the rules of the game? What sort of hearing is to be held? Who will have the burden to prove what, and by what standard should a decision be made?
488 So. 2d at 856.
In Department of Transportation v. Lopez-Torres, 526 So. 2d 674 (Fla. 1988), the Supreme Court answered the certified questions, but not Judge Anstead's questions. The Court held that the Legislature has preempted municipalities from exercising any control over the establishment of state roads and bridges and DOT has the authority to route a state road bridge through or into a municipality in conflict with the local government's comprehensive plan.
However, the Supreme Court held that DOT's procedural standards were insufficient to justify its decision. Affirming in part and quashing in part, the Court remanded the case for a full evidentiary hearing.
The Supreme Court noted that the Legislature has "statutorily vested a broad discretionary authority in the DOT to plan and construct state roads and bridges." 526 So. 2d at 675. Encouraging intergovernmental cooperation in transportation planning, the Court cautioned that DOT's "power, while plenary, is [not] absolute." 526 So. 2d at 676.
The Court quoted with approval the following language from State v. Florida State Improvement Commission, 75 So. 2d 1 (Fla. 1954):
the power vested in the DOT is not absolute and is limited to the lawful exercise of its discretion. Its dictates can be overridden if they are found to be without authority and constitute an abuse of discretion. The DOT must exercise its discretion to devise plans and select sites that best serve the public need. In so doing it is incumbent upon the DOT to comply with the relevant statutory
scheme authorizing the planning and construction of our state roads and bridges, including the provisions requiring public hearings and consi- deration of local conditions.
526 So. 2d 676 (citation omitted).
Disagreeing with the Fourth District's conclusion that DOT's final order was "clearly erroneous and constituted an abuse of discretion," the Court
reasoned that an evidentiary hearing would be necessary to determine the factual question whether DOT abused its discretion in deciding to relocate the bridge.
The teaching of Lopez-Torres and Florida State Improvement Commission is that DOT is entrusted with discretion in "devis[ing] plans and select[ing] sites that best serve the public need." Courts can override DOT's discretionary planning decisions if they result from an abuse of this discretion, which is a question of fact. In exercising its discretion, DOT must comply with relevant statutes, such as those calling for public hearings, although compliance with such statutes may not ensure a finding that DOT has lawfully exercised its discretion.
In its Order Referring Case for Hearing, DOT observes that Petitioners and Intervenors are not entitled to a de novo hearing on the issue whether DOT abused its discretion in deciding to replace the Anna Maria Island Bridge with a fixed- span, high-level bridge. Instead, DOT states that the hearing on this issue should be guided by the principles of Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 914 (Fla. 1988).
Involving a bid protest, Groves-Watkins directs: "the Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally or dishonestly." These are suitable standards for determining whether DOT abused its discretion in deciding to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge.
There is no evidence whatsoever of fraud or dishonesty in this case. However, DOT's decision to replace the Anna Maria Island Bridge was arbitrary and illegal.
Absent a violation of a statute, it is difficult to identify objective standards against which to measure an agency's acts or omissions to determine if they are arbitrary or represent an abuse of discretion. In the Lopez-Torres case, the Fourth District court evaluated DOT's planning decision in light of local conditions, such as the advisability of eliminating a jog in a road linking I-95 and State Road A1A one mile from a straight road linking I-95 and State Road A1A and also served by a bridge.
The next section of this recommended order concludes that DOT violated Section 399.155(6)(b) regarding the design public hearing and effective public participation. This violation alone suffices as a basis for concluding that DOT's ensuing design decision was arbitrary, illegal, and, thus, an abuse of discretion. However, DOT violated other law through the entire planning process. These violations render all of DOT's planning decisions in this case arbitrary, illegal, and an abuse of discretion.
DOT's decision to replace the Anna Maria Island Bridge with a fixed- span, high-level bridge may be evaluated in regard to two statutory provisions. One provision applies and one does not.
The statutory provision that does not apply to this case is Section 339.155(2), which identifies 24 criteria that DOT must address in preparing and amending the Florida Transportation Plan. In dictum, the Fourth District's Lopez-Torres decision suggests that courts may evaluate DOT's discretion based on the statutory criteria for preparing the Florida Transportation Plan. The parties have addressed these criteria in the hearing and their proposed recommended orders.
Appropriately broad for the development of a statewide transportation plan, the 24 criteria require DOT to consider such matters as federal, state, and local energy-use programs; the transportation needs of nonmetropolitan areas; the consistency of the Florida Transportation Plan with regional, metropolitan, and local plans; connectivity between metropolitan areas in and outside Florida; recreational travel and tourism; certain water-pollution programs; the efficient use of existing transportation facilities; the social, economic, energy, and environmental effects of transportation decisions on the community and region; methods to manage and prevent traffic congestion; the effect of transportation decisions on land uses; the future and existing needs of the state transportation system; the use of life-cycle costs in the design and engineering of bridges, tunnels, and pavement; the joint use of transportation corridors and facilities for alternate transportation and community uses; and the integration of any proposed system into all other types of transportation facilities in the community.
The criteria of Section 339.155(2) govern the preparation of the Florida Transportation Plan, not individual transportation projects. In planning the proposed bridge, DOT was not preparing a statewide transportation plan. Section 339.155(2) does not require that each transportation project satisfy the 24 criteria. No single project on the scale of the proposed bridge could possibly satisfy all of these criteria.
The 24 criteria of Section 339.155(2) could guide a determination as to whether DOT abused its discretion in deciding to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge, but only in the context of determining whether DOT abused its discretion by including the proposed project in the Florida Transportation Plan. Such a determination is not made in isolation, but in the framework of what projects the Florida Transportation Plan includes and excludes. Without considering the other projects making up the plan and the projects that DOT omitted, it would be impossible to determine whether the proposed project adequately addresses the 24 criteria of the Florida Transportation Plan.
Contrary to SAM's contentions, nothing in the PD&E manual imposes any of the 24 criteria on major transportation improvements. The manual limits its discussion of the 24 criteria to the preparation of the Florida Transportation Plan. The 24 criteria of the Florida Transportation Plan do not provide a substantive set of standards against which to measure DOT's exercise of its discretion.
However, another substantive statutory provision applies to DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. This provision is the state comprehensive plan, which is set forth in Sections 187.101 and 187.201.
Section 187.101(1) provides that the state comprehensive plan provides "long-range policy guidance for the orderly social, economic, and physical growth of the state." Section 187.101(2) warns that agencies are not required to expend unavailable financial resources to implement policies of the state comprehensive plan. But a state agency spending substantial sums of money on long-lived transportation projects is subject to the goals and policies of the state comprehensive plan, "reasonably applied where they are economically and environmentally feasible, not contrary to the public interest, and consistent with the protection of private property rights," as provided by Section 187.101(2), which also requires that the plan be applied as a whole with no specific goal or policy being applied in isolation.
Various provisions of the state comprehensive plan apply in this case. Section 187.201(20)(a) requires that "Florida shall direct future transportation improvements to aid in the management of growth . . .." Section 187.201(20)(b)2 requires the coordination of transportation improvements in major corridors to "enhance system efficiency and minimize adverse environmental impacts." Section 187.201(20)(b)6 is to "[p]romote timely resurfacing and repair of roads and bridges to minimize costly reconstruction and to enhance safety." Section 187.201(20)(b)9 is to ensure that Florida's transportation system provides "timely and efficient access to services, jobs, markets, and attractions." Section 187.201(20)(b)12 is to "[a]void transportation improvements which encourage or subsidize increased development in coastal high- hazard areas or in identified environmentally sensitive areas such as wetlands .
. . or productive marine areas." Section 187.201(20)(b)13 is to coordinate transportation improvements with state, regional, and local plans.
Other provisions of the state comprehensive plan are applicable to DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Section 187.201(18)(a) provides: "Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." Section 187.201(18)(b)2 is to "[p]romote rehabilitation and reuse of existing facilities [and] structures as an alternative to new construction."
Section 187.201(9)(a) is to "ensure that development ... in coastal areas do[es] not endanger public safety or important natural resources."
Section 187.201(9)(b)4 is to "[p]rotect coastal resources [and] marine resources from the adverse effects of development." Section 187.201(9)(b)7 is to "[p]rotect and restore long-term productivity of marine fisheries habitat and other aquatic resources."
Section 187.201(10)(a) is to "protect and acquire unique natural habitats and ecological systems, such as wetlands . . .." Section 187.201(10)(b)1 is to "[c]onserve . . . wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long- term environmental, economic, and recreational value." Section 187.201(22)(b)3 is to "[m]aintain, as one of the state's primary economic assets, the environment, including clean air and water ... and natural resources."
Section 187.201(26)(a) provides: "Systematic planning capabilities shall be integrated into all levels of government in Florida with particular emphasis on improving intergovernmental coordination and maximizing citizen involvement." Section 187.201(26)(b)6 is to "[e]ncourage citizen participation at all levels of policy development, planning, and operations." Section 187.201(26)(b)8 is to "[e]ncourage the continual cooperation among communities which have a unique natural area, irrespective of political boundaries, to bring the private and public sectors together for establishing an orderly, environmentally, and economically sound plan for future needs and growth." Section 187.201(21)(b)1 is to "[e]ncourage greater cooperation between, among, and within all levels of Florida government through the use of appropriate interlocal agreements and mutual participation for mutual benefit."
As set forth in the ultimate findings of fact, DOT has so poorly addressed the various provisions of the state comprehensive plan that the decision to replace the Anna Maria Island Bridge is illegal, arbitrary, and an abuse of discretion. These findings and conclusion are based on the planning process and the final decision to replace the existing bridge. The planning process conducted by DOT and its consultants is characterized by repeated failures to collect vital data, routine disregard or misanalysis of existing data, and ongoing resistance to meaningful citizen involvement in the planning of this project, which, though regional, clearly has distinct impacts on Anna Maria Island.
The resulting planning decision unreasonably and arbitrarily subordinates important environmental, cultural, and aesthetic concerns to DOT's determined commitment to the implementation of a major construction project. Applicable design standards do not require the replacement of the Anna Maria Island Bridge due to the absence of shoulders, H-15 design load, or inability to resist ship impacts. This drawbridge has proved safe for many years on the land and in the water, has exhausted less than 80 percent of its useful life, is in good condition, does not unreasonably delay vehicles or vessels, and accommodates Intracoastal-Waterway marine traffic that would be denied passage by the proposed bridge.
The planning process and resulting decision are arbitrary, illegal, and an abuse of discretion.
DOT's Compliance with the Statutory Requirement of Public Hearings, Including Effective Public Participation, Prior to Selecting, Locating, and Designing the Fixed-Span, High-Level Bridge
DOT Lacks Discretion in Complying with Public-Hearing Statute
In contrast to the issue involving DOT's discretionary decision to replace the bridge, DOT has no discretion whether to comply with statutory requirements. If the Legislature mandates public hearings, DOT must conduct public hearings. If the Legislature mandates notice in a certain form to certain persons, DOT must provide such statutory notice.
Proposed Bridge is Major Transportation Improvement
Section 339.155(6)(b) (Florida Statutes 1993) required public hearings "[d]uring development of specific project plans[.]" Section 339.155(6)(b) (Florida Statutes 1995) applies the same requirements:
During development of major transportation improvements, such as those increasing the capacity of a facility through the addition of new lanes or providing new access to a limited or controlled access facility or
construction of a facility in a new location[.]
The proposed bridge would trigger public hearings under the old version of Section 339.155(6)(b). However, the old version of Section 339.155(6)(b) does not apply in this case, even though the old version was the law when this case first arose.
In 1994, the Legislature limited the public-hearings requirement of Section 339.155(6)(b) by changing "specific project plans" to "major transportation improvements." Section 49 of Chapter 94-237, Laws of Florida. Section 81, Chapter 94- 237 provides that the act became effective upon becoming a law, which was May 25, 1994. Nothing in Chapter 94-237 addresses pending disputes or whether the Legislature intended the new law to operate retroactively.
When legislation is silent, it generally operates prospectively. See, e.g., State Farm Mutual Insurance Co. v. LaForet, 658 So. 2d 55, 61 (Fla. 1995). However:
Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.
City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961).
In this case, the Legislature removed the right to a hearing from a class of cases--specific project plans that do not rise to the level of major transportation improvements. This resembles a procedural change, as was the Legislative repeal of a predisposition hearing in Batch v. State, 405 So. 2d 302, 304 (Fla. 4th DCA 1981). Petitioner's petition likewise refers to the right to a public hearing as a procedural right. Affecting a matter of procedure, the statutory amendment limiting public hearings to major transportation improvements should be given retroactive effect.
In any event, the proposed bridge is a major transportation improvement. DOT proposes constructing the bridge in a new location--20 feet south of the Anna Maria Island Bridge. By statutory definition, a major transportation improvement includes the "construction of a facility in a new location." The shift of 20 feet from an area naturally barren of seagrass to an area largely covered by seagrass constitutes a new location with considerable environmental consequences.
DOT argues in its proposed recommended order that the proposed bridge would not be in a new location because it would be in the same transportation corridor as the Anna Maria Island Bridge. The corridor is the same, but the Legislature chose the word, "location." The provision of public hearings is designed to allow the public a chance to be heard before the construction of transportation projects with, among other things, major environmental impacts. Thus, the Legislature used "location," which would permit a public hearing concerning such impacts, even though the corridor remained unchanged.
Even if the location were not different, the illustrations in the statutory definition are not exhaustive, and the proposed bridge is a major transportation improvement. The planning of such a significant project would be well-served by the public-hearings requirements of Section 339.155(6)(b). At least for design public hearings, Section 339.155(6)(b)5, quoted below, resolves any doubt in favor of conducting a hearing.
DOT's corridor argument proves too much. If correct, DOT would likewise not be required to provide public hearings prior to the reconstruction of the Sunshine Skyway Bridge in the same corridor, unless DOT were to concede that the three categories of major transportation projects are merely illustrative.
Statutory Requirement of Public Hearings
Section 339.155(6)(b) requires public hearings prior to three decisions in the transportation-planning process:
. . . [DOT] shall hold one or more hearings prior to the selection of the facility to be provided; prior to the selection of the site
or corridor of the proposed facility; and prior to the selection of and commitment to a specific design proposal for the proposed facility. Such public hearings shall be conducted so as to pro- vide an opportunity for effective participation by interested persons in the process of transpor- tation planning and site and route selection and in the specific location and design of transpor- tation facilities. The various factors involved in the decision or decisions and any alternative proposals shall be clearly presented so that the persons attending the hearing may present their views relating to the decision or decisions which will be made.
Section 339.155(6)(c) requires that DOT provide special notice prior to design hearings. The statute requires:
The department, prior to holding a design hearing, shall duly notice all affected property owners of record . . . by mail at least 20 days prior to the date set for the hearing. The affected property owners shall be:
Those whose property lies in whole or in part within 300 feet on either side of the centerline of the proposed facility.
Those who the department determines will be substantially affected environmentally, economically, socially, or safetywise.
For each subsequent hearing, the department shall daily publish notice at least 14 days immediately prior to the hearing date in a news- paper of general circulation for the area affected.
* * *
The opportunity for another hearing shall be afforded in any case when proposed locations or designs are so changed from those presented in the notices specified above or at a hearing as to have a substantially different social, economic, or environmental effect.
The opportunity for a hearing shall be afforded in each case in which the department is in doubt as to whether such a hearing is
required.
Effective public participation is a feature of public hearings, required by Section 339.155(6)(b). Effective public participation does not impose additional requirements upon DOT outside of the manner in which it conducts the public hearings, even though effective public participation might sometimes require that DOT provide certain information outside of a public hearing in order to ensure effective public participation at the public hearing.
The public hearings at issue must precede three distinct decisions: the selection of the facility-type (i.e., a new bridge as opposed to the rehabilitation of the existing bridge); the selection of the site (i.e., the "location of the site . . .," as DOT refers to this decision in its Order to Show Cause; thus, in this case, the site decision is the selection of the south alignment as opposed to the north or existing alignment); and the selection of and commitment to the design (i.e., a fixed-span, high-level bridge as opposed to a low-, mid-, or high-level bascule bridge).
The public-hearings issue focuses on the October 1993 public hearings. The facility-type and location public hearings do not require statutory notice, although DOT must provide reasonable notice to accommodate effective public participation.
If insufficient notice or available information precludes the use of the February 1989 workshop as a facility- type or site public hearing, the August 1989 public hearing could satisfy the requirement of public hearings before the facility- type and location selection. No statutorily prescribed notice was required for the facility-type and site public hearings, so the issue is merely whether the notice and available information were adequate of effective public participation. The notice for the August 1989 public hearing was reasonable, though it did not go to owners of individual condominiums, as is required for design public hearings. Also, the revised Draft Preliminary Engineering Report had been available for six months prior to the August 1989 public hearing.
At the August 1989 public hearing, DOT was still in the formulative stage of decisionmaking as to location. It is less clear that DOT had not yet decided upon a facility-type-- i.e., replacement bridge--prior to the August 1989 public hearing. But Petitioners and Intervenors failed to prove that DOT in fact had decided to replace the Anna Maria Island Bridge prior to the August 1989 public hearing.
The absence of statutory notice means that neither the February 1989 public workshop nor August 1989 public hearing may satisfy the requirement of a public hearing prior to the selection of and commitment to a design. If there were any doubt as to the sufficiency of the notice prior to the August 1989 public hearing, Section 399.155(6)(b)6 resolves the doubt in favor of compelling another design public hearing.
The preponderance of the evidence establishes that, long prior to October 1993, DOT had selected and committed to the design decision of a fixed- span, high-level design over such alternates as a low-, mid-, or high-level bascule. DOT thus committed to the design of the proposed bridge prior to the October 1993 design public hearing and thereby denied the public the opportunity of effective participation.
It is
RECOMMENDED that the Department of Transportation enter a final order cancelling the proposed project to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge.
ENTERED on May 6, 1996, in Tallahassee, Florida.
ROBERT E. MEALE
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 on May 6, 1996.
APPENDIX
Rulings on Proposed Findings of Petitioners and SAM 1-5: adopted or adopted in substance.
6: same rulings as in prior recommended order except to extent of any contrary rulings in this recommended order.
7: adopted or adopted in substance, during the early part of the planning process.
8: adopted or adopted in substance, except as to the date of the public hearing.
9-17: adopted or adopted in substance. 18: rejected as irrelevant.
19-23: adopted or adopted in substance. 24: rejected as irrelevant.
25: adopted or adopted in substance.
26: adopted or adopted in substance, except as to author and recipient of memorandum.
27: rejected as unnecessary.
28: adopted or adopted in substance. 29-35: rejected as unnecessary.
36-37: adopted or adopted in substance. 38-41: rejected as subordinate.
42-43: rejected as irrelevant.
44: rejected as unsupported by the appropriate weight of the evidence. 45-46: rejected as subordinate.
47-54: adopted or adopted in substance.
55: rejected as unsupported by the appropriate weight of the evidence. 56: rejected as recitation of evidence.
57: rejected as subordinate.
58-63: adopted or adopted in substance. 64: rejected as subordinate.
65-66: adopted or adopted in substance. 67-79: rejected as subordinate.
80-83: adopted or adopted in substance.
84: rejected as recitation of evidence. The selection of the type of facility in this case is a bridge--specifically whether to build a new bridge or rehabilitate the old one.
85: adopted or adopted in substance.
86: adopted or adopted in substance, except that DOT did not select the facility-type (a bridge) and the site (the south alignment) until after the August 1989 public hearing.
87: rejected as not finding of fact. 88: adopted or adopted in substance.
89: rejected as unnecessary. It is only necessary to find that DOT selected the fixed-span, high-level design prior to the October 1993 design public hearings.
90-91: rejected as subordinate.
92: adopted or adopted in substance. 93: rejected as subordinate.
94-98: adopted or adopted in substance.
99: adopted or adopted in substance, but the approaches have actual, gravel shoulders of eight feet.
100: rejected as unsupported by the appropriate weight of the evidence. 101-43: adopted or adopted in substance.
144: rejected as subordinate.
145: adopted or adopted in substance.
146-47: rejected as unsupported by the appropriate weight of the evidence. 148-53: adopted or adopted in substance.
154-57: rejected as unsupported by the appropriate weight of the evidence. 158-60: adopted or adopted in substance.
Rulings on Proposed Findings of Intervenor VanWagoner
Any proposed findings referring to statements of counsel that have been adopted were adopted because of evidence in the record supporting such findings. Counsel's statements are not support for such proposed findings because these statements are not evidence.
Any proposed findings referring to views taken by the undersigned that have been adopted were adopted because of evidence in the record supporting such findings, such as road maps.
1-11: adopted or adopted in substance.
12: rejected as subordinate and unnecessary.
13: adopted or adopted in substance, as to removal of four- laning project from MPO needs plan.
14: rejected as speculative.
15: rejected as unsupported by the appropriate weight of the evidence, as to safety being an issue.
16: adopted or adopted in substance.
17: rejected as subordinate, except as to a design change.
18: rejected as unsupported by the appropriate weight of the evidence. 19-20: rejected as subordinate.
21 (first sentence): rejected as unsupported by the appropriate weight of the evidence.
21 (remainder): rejected as recitation of evidence. 22-24: rejected as unnecessary.
25: adopted or adopted in substance.
26-27: rejected as unsupported by the appropriate weight of the evidence. 28-33: rejected as recitation of evidence.
34-37: adopted or adopted in substance. 38: rejected as recitation of evidence.
39: adopted or adopted in substance, except that proposed finding as to disclosure is rejected as unnecessary.
40-43: rejected as subordinate.
44: adopted or adopted in substance.
45-47: rejected as recitation of evidence. 48: adopted or adopted in substance.
49: rejected as unnecessary.
50-51: rejected as subordinate and recitation of evidence. 52-53: adopted or adopted in substance.
54-64: rejected as subordinate.
65-66 (first paragraph): rejected as recitation of evidence.
66 (remainder): adopted or adopted in substance. 67-70: rejected as recitation of evidence.
71: adopted or adopted in substance. 72-73: rejected as subordinate.
74: adopted or adopted in substance.
73 (second 73)-75: rejected as not findings of fact. 76: adopted or adopted in substance.
77 (first clause): rejected as unsupported by the appropriate weight of the evidence.
77 (second clause): adopted or adopted in substance. 78: adopted or adopted in substance.
79-80: rejected as unsupported by the appropriate weight of the evidence. 81-83: rejected as not findings of fact.
84: adopted or adopted in substance.
85: rejected as unsupported by the appropriate weight of the evidence. 86: adopted or adopted in substance.
87: rejected as unsupported by the appropriate weight of the evidence.
Rulings on Proposed Findings of DOT
1-2: adopted or adopted in substance except for the date of construction.
Most references in the DOT documentation are to 1959, although there are some references to 1957.
3 (first two sentences): adopted or adopted in substance.
3 (last sentence): rejected as subordinate. 4-13: adopted or adopted in substance.
14: adopted as to 4 percent grade, but rejected as irrelevant as to remainder.
15: rejected as subordinate.
16 (first sentence): adopted or adopted in substance.
(second sentence): rejected as subordinate.
(first sentence): rejected as subordinate.
17 (second sentence): adopted or adopted in substance. 18-21: adopted or adopted in substance.
22-24: rejected as irrelevant and subordinate.
25-26 (first sentence): adopted or adopted in substance.
26 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
27: adopted or adopted in substance.
28: adopted or adopted in substance, except that there are conditions attached to the standard criteria. Also, replacement remains a factual determination requiring consideration of all the circumstances.
29: adopted or adopted in substance.
30: adopted in the sense that the decision to replace the Anna Maria Island Bridge accompanied the PD&E process.
31 (first sentence): adopted or adopted in substance.
31 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
32-34: adopted or adopted in substance.
35: rejected as subordinate, irrelevant, or unsupported by the appropriate weight of the evidence.
36-39: adopted or adopted in substance, except as to no foregone conclusions reached as a result of DOT's studies, which is rejected as unsupported by the appropriate weight of the evidence.
40-53: adopted or adopted in substance.
54: adopted or adopted in substance, except the public lacked effective participation in the February 1989 workshop because of lack of notice and lack of factual background. If the references to "workshop" are to the August 1989 public hearing, this format too leaves something to be desired as to effective public participation given the refusal of DOT and consultant representatives to engage in any give-and-take with member of the public except off the record during the break and the refusal to discuss anything but the project under consideration.
55-60: adopted or adopted in substance.
61: adopted or adopted in substance, except willingness to continue with public involvement is rejected as unsupported by the appropriate weight of the evidence.
62: adopted or adopted in substance.
63 (first two sentences): rejected as unsupported by the appropriate weight of the evidence.
63 (third sentence): adopted or adopted in substance, as the sole reason for the October 1993 public hearings.
64-65 (first sentence): rejected as unsupported by the appropriate weight of the evidence.
65 (remainder)-68: adopted or adopted in substance.
69: rejected as unsupported by the appropriate weight of the evidence; the fixed-span, high-level bridge was the selection, not merely a preferred alternative.
70-71: adopted or adopted in substance.
72 (first sentence): rejected as irrelevant. District Secretary May does not need to attend the public hearings or remain in the hearing room during the public hearings, if he attends. If he is to be involved in the decision, he needs only to familiarize himself with the public comments.
72 (second sentence)-74: rejected as unsupported by the appropriate weight of the evidence.
75: rejected as subordinate and unnecessary.
76: rejected as unsupported by the appropriate weight of the evidence. 77-78: rejected as subordinate.
79: rejected as unsupported by the appropriate weight of the evidence, although cost was a major factor in the design decision, whenever it was actually made.
80: rejected as subordinate.
81-82 (first sentence): adopted or adopted in substance.
82 (second and third sentences): rejected as unsupported by the appropriate weight of the evidence.
82 (fourth sentence): adopted or adopted in substance, although this projection is probably too low.
83-84: rejected as unsupported by the appropriate weight of the evidence. 85-87: adopted or adopted in substance, as recitals of DOT's reasoning--
not as persuasive reasoning under all of the circumstances.
88: adopted or adopted in substance, as recital of Final Preliminary Engineering Report.
89: rejected as unsupported by the appropriate weight of the evidence. 90: rejected as subordinate and irrelevant.
91-92 (except last sentence): adopted or adopted in substance.
92 (last sentence): rejected as unsupported by the appropriate weight of the evidence.
93-94 (first sentence): adopted or adopted in substance.
94 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
95: adopted or adopted in substance.
96: adopted or adopted in substance, as recital of DOT's thinking. 97: adopted or adopted in substance.
98: adopted or adopted in substance, except as to not meeting design standards.
99: adopted or adopted in substance, as recital of DOT's thinking. 100-04: rejected as irrelevant.
105: adopted or adopted in substance, as recital of thinking of these individuals.
106: rejected as repetitious.
107: adopted or adopted in substance.
108 (first sentence): rejected as irrelevant.
108 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
109: rejected as unsupported by the appropriate weight of the evidence and irrelevant.
110: rejected as unsupported by the appropriate weight of the evidence. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as unsupported by the appropriate weight of the evidence and
irrelevant.
113 (first sentence): adopted or adopted in substance.
113 (second sentence): rejected as irrelevant and as unsupported by the appropriate weight of the evidence.
114-16: rejected as unsupported by the appropriate weight of the evidence.
117 (except second sentence): rejected as subordinate.
(second sentence): adopted or adopted in substance.
(first sentence): rejected as subordinate and irrelevant.
118 (second sentence): adopted or adopted in substance. 119: rejected as irrelevant and subordinate.
120: rejected as unsupported by the appropriate weight of the evidence.
121 (first clause): adopted or adopted in substance.
121 (remainder): rejected as irrelevant and subordinate. 122-26: adopted or adopted in substance.
127-28: adopted or adopted in substance.
129-30: rejected as subordinate and unnecessary.
131 (first sentence): adopted or adopted in substance.
131 (remainder)-32: rejected as subordinate and unnecessary.
133 (first sentence): adopted or adopted in substance.
133 (remainder): rejected as subordinate and unnecessary.
COPIES FURNISHED:
Ben G. Watts, Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0458
ATTN: Eleanor F. Turner, Mail Station 58
Thornton J. Williams, General Counsel Department of Transportation
562 Haydon Burns Building 605 Suwannee Street
Tallahassee, Florida 32399-0458
David M. Levin Icard Merrill
2033 Main Street, Suite 600
Sarasota, Florida 34237
Paul Sexton
Chief, Administrative Law Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Francine Ffolkes, Assistant General Counsel Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Robert E. VanWagoner Post Office Box 4121
Anna Maria, Florida 34216
Christine C. Stretesky, Assistant General Counsel Department of Environmental Protection
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
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 longer 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 |
|---|---|
| Oct. 04, 1999 | Second DCA Opinion and Mandate (Affirming DOT`s Final Order), BY ORDER OF THE COURT (appellant`s motion for rehearing is Denied) filed. |
| Apr. 01, 1999 | Final Order filed. |
| May 06, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 12/04-14/95. & 01/08-10/96. |
| Mar. 26, 1996 | Order Publishing Ex Parte Communication sent out. |
| Mar. 26, 1996 | Department of Transportation Exhibits; Exhibits 108 & 116 filed. |
| Mar. 26, 1996 | Order Publishing Ex Parte Communication sent out. |
| Mar. 19, 1996 | (Exhibits) Planning Vol. 6 ; Site Characteristics Inventory Report filed. |
| Feb. 20, 1996 | (Respondent) Notice of Filing FDOT Exhibits filed. |
| Feb. 20, 1996 | Notice of Filing FDOT Exhibits (2 Boxes) filed. |
| Feb. 16, 1996 | Case No/s: 94-4634 unconsolidated. |
| Feb. 16, 1996 | Agency's Proposed Findings of Fact, Conclusions of Law filed. |
| Feb. 16, 1996 | Petitioner`s Peter Ereg, et al And Save Anna Maria, Inc. Proposed Recommended Order filed. |
| Feb. 16, 1996 | Intervenor Robert E. Van Wagoner's Proposed Findings of Fact, Conclusions of Law and Recommended Order filed. |
| Jan. 30, 1996 | Exhibits (1 Binder, tagged) filed. |
| Jan. 30, 1996 | (Save Anna Maria) Motion for Extension of Time to File Proposed Recommended Order; Cover Letter filed. |
| Jan. 30, 1996 | Letter to HO from Robert E. Van Wagoner Re: Petitioner/Intervenor Robert E. Van Wagoner's Petition to Extend the Deadline for Filing Proposed Findings of Fact and Proposed Recommended Order Ten Days From Feb. 6, 1996 filed. |
| Jan. 23, 1996 | Letter to D. Levin, R. VanWagoner from Paul Sexton (cc: HO) Re: FDOT Exhibit 134a (No enclosure) from filed. |
| Jan. 19, 1996 | Letter to HO from Robert E. Van Wagoner Re: Submission of Copies of "Van Exhibit #53" filed. |
| Jan. 19, 1996 | Department of Environmental Protection's Proposed Recommended Order filed. |
| Jan. 19, 1996 | Agency`s Proposed Findings of Fact, Conclusions of Law filed. |
| Jan. 19, 1996 | Petitioner Save Anna Maria, Inc. And Intervenor Robert VanWagoner Proposed Findings of Fact, Conclusions of Law filed. |
| Jan. 12, 1996 | Letter to D. Levin from Paul Sexton (cc: HO) Re: Original version of the Department's PD&E Manual (No enclosure) filed. |
| Jan. 08, 1996 | CASE STATUS: Hearing Held. |
| Jan. 05, 1996 | Letter to HO from Paul Sexton Re: Background to Bridge Project Development filed. |
| Jan. 05, 1996 | Letter to REM from Paul Sexton (RE: written history of the development of SR 64 project) filed. |
| Jan. 03, 1996 | Letter to Parties of Record from D. Lambert (re: enclosed ex parte communication) sent out. |
| Dec. 29, 1995 | Order Publishing Ex Parte Communication sent out. |
| Dec. 29, 1995 | Petitioner/Intervenor Robert E. VanWagoner's Objection to Ex-Parte Communication Being Accepted On The Record; Intervenor Robert E. VanWagoner's Amended Witness And Exhibit List for Planning Phase of Final Hearing filed. |
| Dec. 26, 1995 | Letter to REM from Harold Woodrow Hanson (RE: request that hearing officer include his testimony in reaching recommendation) filed. |
| Dec. 22, 1995 | FDOT Exhibits (2 boxes tagged) filed. |
| Dec. 22, 1995 | FDOT List of Admitted and Proffered Exhibits w/cover letter filed. |
| Dec. 22, 1995 | Index w/cover letter filed. |
| Dec. 21, 1995 | Letter to HO from Andrew K. Fritsch Re: Exhibits filed. |
| Dec. 21, 1995 | Exhibits filed. |
| Dec. 20, 1995 | Letter to SLS from Dr. Arthur Danzinger (RE: approve of DOT`s plan to build a new bridge to Anna Maria Island) filed. |
| Dec. 20, 1995 | Transcripts (Volumes I thru 13, tagged) filed. |
| Dec. 18, 1995 | Notice of Filing FDOT 94 filed. |
| Dec. 11, 1995 | CASE STATUS: Hearing Held. |
| Dec. 04, 1995 | Department of Transportation's Witness and Exhibit Lists in Case Nos.95-3622 (DEP Environmental Permit Challenges) w/cover letter; Facsimile Routing Memo to David Levin from Francine Ffolkes filed. |
| Dec. 04, 1995 | CASE STATUS: Hearing Held. |
| Dec. 04, 1995 | Department's Final Exhibit List in Planning Case filed. |
| Dec. 04, 1995 | Department's Corrected Final Exhibit List in Planning Case; Department's Final Witness List in Planning Case filed. |
| Dec. 04, 1995 | (Petitioner) Motion to Disqualify Agency Head filed. |
| Dec. 01, 1995 | Intervenor Robert E. Vanwagoner's Response to DOT's First Set of Interrogatories filed. |
| Dec. 01, 1995 | Department of Transportation's Witness and Exhibit Lists in Case Nos.95-3621 and 95-3622 (DEP Environmental Permit Challenges); FDOT Exhibit List filed. |
| Dec. 01, 1995 | (Robert E. Van Wagoner) Response to Notice of Taking Depositions filed. |
| Nov. 28, 1995 | Notice And Certificate of Service of Department of Transportation`s Supplemental Answers and Response to VanWagoner`s First Interrogatories And Discovery filed. |
| Nov. 28, 1995 | Notice And Certificate of Service of Department of Transportation`s Answers to Amended First Interrogatories From Intervenor And Petitioner VanWagoner; (DOT) Amended Notice of Taking Depositions Duces Tecum filed. |
| Nov. 27, 1995 | CC: Letter to David Levin from Francine Ffolkes (RE: copies of deposition) filed. |
| Nov. 22, 1995 | (DOT) Notice of Taking Depositions Duces Tecum filed. |
| Nov. 21, 1995 | Order on Motion for Sanctions sent out. |
| Nov. 21, 1995 | (Petitioner) Motion for Sanctions; (Save Anna Maria) Notice of Telephonic Hearing filed. |
| Nov. 21, 1995 | Petitioner Robert E. VanWagoner`s Response to Request From DOT for Preliminary List of Witnesses filed. |
| Nov. 21, 1995 | Letter to Robert VanWagoner from MWC sent out. (RE: response to letter of 11/13/95 to Sharyn Smith) |
| Nov. 21, 1995 | Department's Response to Motion for Sanction filed. |
| Nov. 16, 1995 | Petitioner Peter V. Ereg, Et Al and Save Anna Maria, Inc's Preliminary Witness List filed. |
| Nov. 16, 1995 | Amended Notice of Hearing sent out. (hearing set for December 4 through December 15, 1995 and January 8-12, 1996 at 10:00am on December 4 and 7; Sarasota) |
| Nov. 15, 1995 | (DOT) Certificate of Service of Department of Transportation's Answers to Save Anna Maria, Inc.'s Expert Interrogatories in DOAH Case No.: 95-3622 filed. |
| Nov. 15, 1995 | Letter to S. Smith from Robert E. VanWagoner Re: Objections to the sudden re-assignment of hearing officer filed. |
| Nov. 14, 1995 | Letter to David M. Levin from Paul Sexton Re: Date and time of deposition filed. |
| Nov. 14, 1995 | Department of Transportation' Response to Save Anna Maria, Inc.'s Request for Production of Documents- DOAH Case No.: 95-3622; Certificate of Service of Department of Transportation's Answers to Save Anna Maria, Inc.'s First Set of Interrogatories in DOAH |
| Nov. 14, 1995 | (Petitioner) Motion to Compel Answers to Interrogatories And Motion for Continuance filed. |
| Nov. 13, 1995 | Amended Notice of Hearing (as to location only) sent out. (hearing set for Nov. 27 through Dec. 15, 1995; 10:00am; Sarasota and Bradenton Beach) |
| Nov. 13, 1995 | Order Granting Motion for Continuance and Reserving Ruling on Motion to Compel sent out. |
| Nov. 13, 1995 | Notice and Certificate of Service (from Robert VanWagoner) filed. |
| Nov. 13, 1995 | (Petitioner) Notice of Taking Deposition; (Petitioner) Motion to Compel Answers to Interrogatories And Motion for Continuance filed. |
| Nov. 13, 1995 | Notice and Certificate of Service of Department of Transportation's Answers and Response to Vanwagoner's First Interrogatories and Discovery; Department of Transportation's Preliminary Witness List filed. |
| Nov. 08, 1995 | (David M. Levin) Motion for Continuance filed. |
| Nov. 07, 1995 | (Respondent) Motion to Compel Answers to Interrogatories and Require That Witnesses Be Made Available for Deposition and Alternative Motion for Sanctions filed. |
| Nov. 07, 1995 | Petitioner/Intervenor, Save Anna Maria, Inc. and Petitioner V. Ereg, Et Al`s Amended Witness and Exhibit List filed. |
| Nov. 06, 1995 | (David M. Levin) Notice of Filing Answers to Expert Interrogatories; Notice of Filing Answers to Interrogatories; Answers to Interrogatories; Petitioner's Response to Respondent's Request to Produce; Notice ofFiling Answers to Dep artment's First Set of I |
| Nov. 06, 1995 | Order on Request to Postpone Hearing sent out. (hearing time is 10:00am) |
| Nov. 03, 1995 | (Robert VanWagoner) Request to Amend Starting Hour of Hearing Nov. 27, 1995, If Conflict Occurs filed. |
| Oct. 25, 1995 | Order sent out. (motion granted) |
| Oct. 25, 1995 | Order sent out. (motion granted) |
| Oct. 24, 1995 | DOT's Response to Save Anna Maria, Inc.'s, Petition to Intervene in DOAH Case No. 94-4634; DOT's Response to Petitioner Save Anna Maria, Inc.'s, Motion to Expedite Discovery filed. |
| Oct. 23, 1995 | (David M. Levin) Motion to Expedite Discovery filed. |
| Oct. 19, 1995 | (David M. Levin) Notice and Certificate of Service of Expert Interrogatories; Notice and Certificate of Service of Expert Interrogatories; (Save Anna Maria, Inc. "SAM") Petition for Leave to Intervene filed. |
| Oct. 18, 1995 | Order Denying Request for Protective Order sent out. (ordered that petitioner/intervenor Robert E. Vanwagoner shall serve his responses to the 9/29/95 interrogatories served on him on by respondent) |
| Oct. 18, 1995 | Amended Notice of Hearing (as to location only) sent out. (hearing set for November 27 through December 1, 1995; 9:00am; Bradenton Beach) |
| Oct. 17, 1995 | Petitioner Robert E. Van Wagoner's First Interrogatories and Discovery to Respondents Department of Transportation and Department of Environmental Protection filed. |
| Oct. 13, 1995 | (Transcript) filed. |
| Oct. 12, 1995 | Letter to HO from David M. Levin Re: Notice of Hearing and changing venue filed. |
| Oct. 10, 1995 | DOT's Response to Petitioner Robert E. Vanwagoner's Motion for Relieffrom DOT's Interrogatories; (2) Letter to HO from Robert E. Van Wagoner Re: Case Nos. 94-4634, 95-3621 and 95-3622; Notice of Withdrawal ofInterrogatories Serve d October 6, 1995; Lette |
| Oct. 10, 1995 | Page 11 to Pleading (from Icard, Merrill, Cullis, Timm P.A.) filed. |
| Oct. 06, 1995 | (DOT) Certificate of Service filed. |
| Oct. 06, 1995 | (DOT) Certificate of Service filed. |
| Oct. 03, 1995 | (W. Douglas Beason) Notice of Appearance of Counsel for Department of Environmental Protection filed. |
| Sep. 29, 1995 | (Paul Sexton) Notice and Certificate of Service of Interrogatories filed. |
| Sep. 29, 1995 | (DOT) Notice and Certificate of Service of DOT`s First Interrogatories to Petitioner Save Anna Maria, Inc.; Certificate of Service of DOT`s Expert Witness Interrogatories to Petitioner Save Anna Maria, Inc.; Department of Transport First Request |
| Sep. 29, 1995 | Certificate of Service of DOT's Expert Witness Interrogatories to Petitioner Robert E. Vanwagoner; Department of Transportation's First Request for Production of Documents to Petitioner Robert E. Vanwagoner filed. |
| Sep. 28, 1995 | Order on Motions to Dismiss and Setting Cases for Final Hearing sent out. (hearing set for Nov. 27 - Dec. 1, 1995) |
| Sep. 28, 1995 | Prehearing Order sent out. |
| Sep. 28, 1995 | Letter to SLS from Robert Wagoner (RE: objections to case) filed. |
| Sep. 25, 1995 | (Paul Sexton) Notice of Telephonic Hearing filed. |
| Sep. 08, 1995 | Letter to HO from Robert E. Van Wagoner Re: Mr. VanWagoner will be out of town from Sept. 7 to Sept. 26 filed. |
| Sep. 07, 1995 | Petitioner Save Anna Maria, Inc.`s Response to Joint Motion to Strike w/cover letter filed. |
| Aug. 31, 1995 | Petitioner`s Response to Joint Motion (8/17/95) by DEP/DOT to Strike Portion`s of Deponent`s Petition and Request for Oral Argument filed. |
| Aug. 18, 1995 | Joint Motion to Strike Portions of Save Anna Maria, Inc.'s Petition for Formal Hearing and Request for Oral Argument; Joint Motion to Strike Portions of Robert E. Vanwagoner's Petition for Administrative Proceeding and Request for Oral Argument filed. |
| Aug. 16, 1995 | Ltr. to HO from Robert E. Van Wagoner re: Reply to Initial Order filed. |
| Aug. 09, 1995 | Department of Environmental Protection's Response to Initial Order filed. |
| Jul. 31, 1995 | Order of Consolidation sent out. (Consolidated cases are: 94-4634, 95-3621 & 95-3622) |
| Jul. 03, 1995 | Department of Transportation's Motion to Consolidate for Final Hearing (with DOAH Case No/s. 94-4634, DEP case no. 95-1073) filed. |
| May 24, 1995 | Further Order of Abeyance sent out. (Parties to file status report by 7/5/95) |
| May 05, 1995 | (Respondent) Status Report filed. |
| Mar. 14, 1995 | Order of Continuance And Status Report sent out. (hearing cancelled until further notice; parties to file joint status report by 5/5/95) |
| Mar. 09, 1995 | Department's Objection to Petitioners' Motion to Abate or for Continuance and Motion for Sanctions; Affidavit of James R. Wilt, Jr., P.E. filed. |
| Mar. 06, 1995 | Notice of Hearing, and Petitioners` Motion to Abate, or Alternatively,Motion for Continuance filed. |
| Feb. 16, 1995 | Notice of Appearance (Dorman); Respondent's First Request for Production of Documents filed. |
| Dec. 13, 1994 | Order Granting Substitution of Counsel sent out. (stipulation for substitution of counsel is approved) |
| Dec. 13, 1994 | Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for March 29-31, 1995; 9:00am; Sarasota) |
| Dec. 09, 1994 | (Respondent) Notice of Hearing filed. |
| Dec. 09, 1994 | Notice of Hearing filed. (Telephone Conference call set for 12-12-94; 2:00pm) |
| Dec. 08, 1994 | (Respondent) Motion to Compel Answers To Interrogatories And Require That Witnesses Be Made Available For Deposition And Alternative Motion For Sanctions; Response In Opposition To Petitioner`s Motion For Continuance filed. |
| Dec. 07, 1994 | Petitioners' Motion for Continuance; Stipulation for Substitution of Counsel filed. |
| Nov. 30, 1994 | (Respondent) Certificate of Service filed. |
| Nov. 30, 1994 | (Respondent) Certificate of Service filed. |
| Nov. 12, 1994 | (Respondent) Response to Petitioner's Second Request for Production filed. |
| Nov. 12, 1994 | (Respondent) Certificate of Service filed. |
| Oct. 31, 1994 | (Respondent) Certificate of Service filed. |
| Oct. 27, 1994 | Notice of Hearing sent out. (hearing set for Dec. 19-21, 1994; 1:00pm; Sarasota) |
| Oct. 27, 1994 | Order sent out. (petitioner's motion to strike portion of order referring case for hearing is denied) |
| Oct. 13, 1994 | (Respondent) Response to Petitioner's Request to Production filed. |
| Oct. 07, 1994 | (Petitioners) Request for Production of Documents; Notice of Serving Second Set of Interrogatories filed. |
| Sep. 20, 1994 | (Petitioners) Request for Production of Documents filed. |
| Sep. 20, 1994 | Department's Response to Motion to Strike filed. |
| Sep. 12, 1994 | (Petitioners) Notice of Service of Interrogatories filed. |
| Sep. 09, 1994 | (joint) Response to Initial Order; Petitioners' Motion to Strike Portions of Order Referring Case for Hearing filed. |
| Sep. 02, 1994 | Letter to WRC from Paul Sexton (re: Response to Initial Order filed. |
| Sep. 02, 1994 | (Joint) Response to Initial Order filed. |
| Sep. 01, 1994 | (District Court of Appeal Pleadings) Response to Petition for Judicial Review of Procedural and Intermediate Agency Action; Order to Show Cause; Petition for Judicial Review of Procedural and Intermediate Agency Action & Appendix; Petitioner's Reply to Re |
| Aug. 24, 1994 | Initial Order issued. |
| Aug. 18, 1994 | Agency referral letter; Petition For Formal Hearing; Order To Show Cause; Petitioners' Responce To Order To Show Cause; Motion To Amend Petition For Formal Hearing; Admendment To Petition For Formal Hearing; Order Refferring Case For Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 10, 1999 | Opinion | |
| Jan. 30, 1998 | Agency Final Order | |
| May 06, 1996 | Recommended Order | DOT's decision to replace drawbridge with high-level fixed-span bridge was abuse of its planning discretion. DOT also failed to conduct design hearing |
