STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. AND MRS. AUGUSTO LOPEZ-TORRES, | ) | |
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Petitioners, | ) | |
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and | ) | |
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TOWN OF OCEAN RIDGE and | ) | |
AUDUBON SOCIETY OF THE | ) | |
EVERGLADES, | ) | |
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Intervenors, | ) | |
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vs. | ) CASE NO. | 88-4564 |
) (formerly | 84-1234) | |
DEPARTMENT OF TRANSPORTATION, | ) | |
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Respondent, | ) | |
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and | ) | |
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CITY OF BOYNTON BEACH, | ) | |
) | ||
Intervenor. | ) |
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 21-23, 1989, in Palm Beach Gardens, Florida.
APPEARANCES
For Petitioners: Hugh MacMillan, Jr., Esquire
Sullivan & Nicoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33401
G. Steven Pfeiffer, Esquire Post Office Box 5948 Tallahassee, Florida 32311
For Respondent: Maxine F. Ferguson, Esquire
Paul J. Martin, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
For Intervenor, Paul J. Nicoletti, Esquire Town of Ocean Sullivan & Nicoletti, P.A. Ridge: 317 Tenth Street
West Palm Beach, Florida 33401
For Intervenor, Hugh MacMillan, Jr., Esquire Audubon Society Sullivan & Nicoletti, P.A.
of the 317 Tenth Street
Everglades: West Palm Beach, Florida 33401
For Intervenor, Raymond A. Rea, Esquire City of Boynton City Attorney
Beach: City of Boynton Beach Post Office Box 310
Boynton Beach, Florida 33425-0310 PRELIMINARY STATEMENT
Respondent, Department of Transportation (Department), proposes to relocate a bridge which spans the intracoastal waterway between the City of Boynton Beach and the Town of Ocean Ridge by constructing a new four-lane, twenty-five foot clearance bascule bridge, 700 feet north of the existing two-lane, ten foot clearance bascule bridge, and by removing the existing structure. Petitioners, Dr. and Mrs. Augusto Lopez-Torres, have challenged the Department's decision, and contend that it constitutes an abuse of discretion. Intervenors, Town of Ocean Ridge and Audubon Society of the Everglades, support the position advocated by petitioners, and intervenor, City of Boynton Beach, supports the Department's decision.
At hearing, petitioners and intervenors, Town of Ocean Ridge and Audubon Society of the Everglades, called as witnesses: Dr. Augusto Lopez-Torres, a petitioner; Karen J. Watson, a town commissioner of the Town of Ocean Ridge and former chairperson of the town's Planning and Zoning Commission; Eric J. Mangione, Mayor of the Town of Ocean Ridge; Lester B. Baird, Town Manager of the Town of Ocean Ridge; James R. Zook, an expert in transportation planning and traffic engineering; Kieran Kilday, an expert in land use planning; Charles W. Potter, Joan M. McMahn, Rosa W. Durando, and Sara Cass Davis, all members of the Audubon Society of the Everglades; Douglas Neuenaschwander, a resident of the Town of Ocean Ridge; Joseph Carroll, a senior field biologist with the U.S. Fish and Wildlife Service; and Bernard J. Yokel, president of the Florida Audubon Society and an expert in estuarine ecology, specializing in mangrove systems and fisheries. Petitioners' exhibits 1, 2A, 2B, and 3-14, were received into evidence.
The Department called as witnesses: William J. Keating, the Department's project engineer in charge of the subject project and an expert in highway design and planning; and Joyce Howland, the Department's district environmental permitting coordinator. The Department's exhibits 1-18 were received into evidence.
Intervenor, City of Boynton Beach, called as witnesses: Craig Livingston, president of the Chamber of Commerce of the Greater Boynton Beach Area; Henry E. Thompson, a resident of the Town of Ocean Ridge; Peter Cheney, City Manager of the City of Boynton Beach; and Carmen Annunziato, planning director of the City of Boynton Beach. Boynton Beach's exhibits 1 and 2 were received into evidence.
The transcript of hearing was filed March 17, 1989, and the parties were granted leave until April 3, 1989, to file proposed findings of fact. Under the circumstances, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order.
FINDINGS OF FACT
The project at issue.
Respondent, Department of Transportation (Department), proposes to construct a new four-lane bascule (movable span) bridge, with a vertical clearance in the closed position of 25 feet, to span the Intracoastal Waterway (ICW) between the City of Boynton Beach (Boynton Beach), situated on the mainland, and the Town of Ocean Ridge (Ocean Ridge), situated on the adjacent barrier island. The purpose of the project is to replace the existing two-lane
50 year-old bascule bridge, with a vertical clearance in the closed position of
10 feet, that currently connects Boynton Beach and Ocean Ridge. The existing bridge, which is located approximately 700 feet south of the proposed project, is slated for removal as soon as the new bridge is built.
As proposed, the approach structure and bridge spanning the ICW will be approximately 1350 feet long and 87 feet in width, and will intersect a mangrove forest on both sides of the ICW. These forests are among the few remaining mangrove forests of significance in Palm Beach County, are healthy and well flushed, and provide the benefits to the community normally associated with their presence: a source of food and shelter for fish, birds and other wildlife; a buffer from wind and water in time of hurricane and other storm events; a natural filter that maintains or improves water quality; and an ideal area to observe and study the native biota.
Construction of the proposed bridge will result in the direct elimination of one acre of the 40-acre mangrove forest on the east side of the ICW, and will further adversely impact that ecosystem by bisecting that forest and thereby preventing the free exchange of waters and wildlife. Further adverse impacts to the forests on both sides of the ICW may be expected from the "shadowing" caused by the bridge structure, and by run-off if not properly contained and treated. Overall, the impacts to the forests by construction of the proposed bridge may be termed significant and adverse.
In addition to the bridge, the project will require the construction of an approach road consisting of a continuation of Boynton Beach Boulevard (State Road 804) from its intersection with US1 to the proposed bridge and from the eastern terminus of the bridge to State Road A1A in Ocean Ridge. Overall, the bridge and approach road will require the acquisition of a 110-foot right-of-way for the length of the project, approximately 3200 feet.
In Boynton Beach, lying on the west bank of the ICW, the impact suffered by those in the immediate area of construction will be minimal. Currently, the area surrounding the intersection of Boynton Beach Boulevard and US1 is commercially developed, and the only displacement that would occur would be a partial taking of the Boynton Lodge Motel, located at the southeast corner of Second Avenue (the continuation of Boynton Beach Boulevard) and US1.
While of minimal impact to Boynton Beach, the proposed project will have substantial impacts to Ocean Ridge and its residents. Ocean Ridge, with a
population of approximately 1400 people, is a "bedroom community" composed almost exclusively of single family residences and a few condominiums.
Currently, some commercial development does exist in the town (a few motels and one restaurant) but those properties were rezoned some years ago to eliminate such use and within a few years the town will be exclusively residential in character.
As proposed, the new bridge and approach road would traverse the mangrove forest on the east side of the ICW, which is within the territorial limits of Ocean Ridge, and continue east, parallel to and north of Coconut Lane, a residential street, until it connected with State Road A1A at the south side of the Ocean Ridge Town Hall. State Road A1A, which runs north and south, is a two-lane "scenic highway," and all relevant land-use plans call for it to remain a two-lane road.
Built as proposed, the new four-lane road would end at a "T"- intersection with State Road A1A at the south side of the Ocean Ridge Town Hall, and require signalization. There, new approaches for the proposed road from State Road A1A traveling south would require the taking of property from the front of the town hall. If taken, the sidewalk, lawn and shrubbery that separate the town hall from State Road A1A would be removed and the new roadway would be within 10 feet of the town hall. Further, if queued because of the signalized intersection, traffic traveling south on State Road A1A could block ingress and egress to the town hall from State Road A1A. The Department has, however, proposed an alternate access to the town hall from the new road which would ameliorate the access problems. 1/
In addition to impacting the mangrove forest and town hall, the new road will also impact the residents of Coconut Lane. Coconut Lane is a residential street comprised of single family homes, including that of petitioners, Dr. and Mrs. Augusto Lopez-Torres. Dr. Lopez-Torres is a practicing physician and his wife a sculptress.
The Lopez-Torres' home, purchased in approximately 1979, is located on the north side of Coconut Lane and is surrounded on the west and north by mangrove forest. The house, which faces Coconut Lane, is a two-story spanish style home built in 1922. From the back sun room, which is used as a studio by Ms. Lopez-Torres, the home overlooks a swimming pool and the surrounding mangrove forest. 2/
Built as proposed, the right-of-way for the approach structure and road would require the taking of a substantial portion of the Lopez-Torres' property at the rear of their home, including their garage apartment and up to one-half of their swimming pool and would encroach to within 20 feet of the back of their house. Under such circumstances, their interests, as well as the interests of the other residents on the north side of Coconut Lane, would be substantially and adversely affected by the proposed project. 3/
The existing alignment
Currently, Boynton Beach and Ocean Ridge are connected by a two-lane bridge at Ocean Avenue, approximately 700 feet south of the proposed project. That bridge, built in 1936, is in poor condition and in need of replacement. 4/
In 1961, anticipating that a four-lane bridge would be built on Ocean Avenue, the Department four-laned Ocean Avenue from State Road A1A to US1, and provided an additional lane on each side for parking. Currently, such road
provides a 90-foot right-of-way that does not impact any environmentally sensitive areas.
East of the ICW, Ocean Avenue connects with State Road A1A in Ocean Ridge. Along this stretch, Ocean Avenue is currently fronted by single family residences, which are built on deep lots and set well back from the street.
West of the ICW, after about 2 blocks, Ocean Avenue connects with US1, a four-lane north-south artery. Development within this area is predominately commercial, as the intersection of Ocean Avenue and US1 was the historic center of the Boynton Beach business district. Located at the north side of the bridge is a restaurant and marina and at its south side is a five-story condominium complex. The remainder of the two-block stretch of Ocean Avenue is occupied by a small regional shopping center and smaller commercial buildings.
From Ocean Avenue, access to State Road 804 (Boynton Beach Boulevard), the main east-west artery in the area, can be had by traveling north on US1 to its intersection with State Road 804, a distance of approximately 700 feet. Development through this area is likewise commercial. The Department's initial evaluation.
In 1975, the Department commenced its project development/environmental study to evaluate alternatives available upon replacement of the Ocean Avenue bridge. 5/ At that time, a study team, consisting of an environmentalist, noise and air quality expert, land planner and engineer was assembled to prepare preliminary plans and a Draft Negative Declaration. 6/
Pertinent to this case, the Department considered two alternatives for a replacement bridge: a four-lane 25-foot clearance bascule bridge at Ocean Avenue or one at Second Avenue (the continuation of Boynton Beach Boulevard). 7/ Both bridges would have four 12-foot wide traffic lanes and substantially the same "footprint," but the Second Avenue bridge would be somewhat longer with a slower rise; 5 percent as opposed to 6 percent at Ocean Avenue. The bridges would be symmetrical in design, with the Second Avenue bridge having the design characteristics heretofore noted. The Ocean Avenue bridge would be an 80-foot wide structure built within the existing 90-foot right-of-way. On the east side of the waterway, an embankment approach was to be constructed. This would have required the acquisition of additional right-of-way, but at the time these proposals were considered (1977) the impacted lands were vacant. On the west side of the waterway, the structure would continue to grade at a point short of 6th Street. Direct access to Ocean Avenue for the businesses and condominiums lying east of 6th Street would be eliminated, but each would, under the Department's proposal, be accorded assess to Ocean Avenue via 6th Street. Total construction and right-of-way costs for the Ocean Avenue alignment were estimated in 1977 to be $5.5 million, and for the Second Avenue alignment to be
$6.8 million.
Following the study team's review, the Department submitted a Draft Negative Declaration to the Federal Highway Administration (FHWA) recommending that the bridge be built at the Second Avenue alignment. FHWA approved the Draft Negative Declaration in September 1976.
Consistent with existent law, the Department held a public hearing in Boynton Beach on February 9, 1977, to accord the public an opportunity to express its views regarding the proposed project. By far, the majority of public input favored retention of a bridge at its current location. Favoring
such retention were Ocean Ridge, residents of Ocean Ridge, and the businesses along Ocean Avenue. Opposing such retention, and favoring the Second Avenue alignment, were Boynton Beach and residents of Ocean Avenue on the Ocean Ridge side of the ICW.
In August 1977, the Department issued its Final Negative Declaration, and concluded that a new 25-foot bascule bridge should be built at the Second Avenue alignment and that no significant adverse environmental impact would result from such alignment. The Final Negative Declaration concluded:
Alternative Location B, the 25 foot clearance bascule bridge on new location along the line of NE Second Avenue was selected for the following reasons:
The old Ocean Avenue bridge could remain in use during the construction period. This was important both for emergency access, especially during a hurricane, and in terms of inconvenience and user cost.
Location B avoids the potential damages to the condominium apartments and the restaurant and three other businesses on Ocean Avenue east of 6th Street. Noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the businesses. Conditions would have been even more difficult during the construction period.
The following considerations also favored Alternate B, although they were secondary to
and b).
The Alternate B Location results in the improvement in the traffic flow patterns on the Boynton Beach side of the waterway. This is not of great importance because the traffic projections show that only 25% of the vehicles crossing the bridge intend to proceed across U.S. 1, the others turn onto
U.S. 1.
The businesses in the general area of downtown Boynton Beach would not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street.
It was recognized that Alternate Location B had certain disadvantages (listed below), but these were overridden by the above noted considerations.
Alternate B has some environmental impacts on a natural area on the east side of the waterway which contains some wetlands and mangroves. Impacts here may be mitigated by extending the bridge structure to eliminate some approach fill, and by replanting of mangroves. This will be investigated in the design and permitting stage.
It was claimed that Alternate B would be the cause of additional traffic into the Town of Ocean Ridge because it would make travel from I-95 via NE Second Avenue more convenient. The Department of Transportation does not feel that an improvement of this type will materially influence a driver in his choice of destination.
It was claimed that Alternate B would cause additional pressures for development in Ocean Ridge. The Department of Transportation will consider the use of a limited access right-of-way in Ocean Ridge to avoid this possibility.
It was claimed that the relocation of the bridge from Ocean Avenue would damage the businesses on Ocean Avenue by removing the traffic from their street.
The construction and right-of-way acquisition costs of Alternate Location B are greater.
The Department's avowed rationale for selecting the Second Avenue alignment over the Ocean Avenue alignment, as set forth in its Final Negative Declaration, lacks substance.
The fact that the Ocean Avenue bridge could remain in use during construction of the new bridge is of little import since there are numerous bridges that connect the barrier island with the mainland, the closest of which is at 15th Avenue in Boynton Beach, one mile south of Ocean Avenue. Considering the available access and the limited population of the barrier island, the need for continued maintenance of the bridge during the replacement period for emergency access, as well as inconvenience and user cost, is de minimis.
The Department's conclusion that noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the restaurant and three other businesses on Ocean Avenue east of 6th Street does not bear scrutiny. First, while the Final Negative Declaration does conclude that if the new bridge is built with a steel grid floor having noise characteristics similar to the existing bridge, which was built in 1936, that adverse noise impacts will occur, it also concludes:
During the detailed design phase, an investigation could have been made to determine if steel gird flooring with lower noise characteristics is available, or if it
is feasible to substitute a smooth steel plate deck with an asphaltic overlay...
Why the Department would defer until the design phase this consideration is not explained of record. It is, however, apparent that the Department made no investigation during the site selection process to ascertain whether or at what cost alternative materials or designs were available that would have obviated any noise impact to the condominium. Loss of view to the condominium is, at best, minimal since its view is predominately east, across the ICW, to the Atlantic Ocean.
While loss of access to Ocean Avenue may have impacted the subject businesses, the Department's plan for the Ocean Avenue alignment included the acquisition of an alternate accessway that would have provided them access to Ocean Avenue at 6th Street. More importantly, the removal of the Ocean Avenue bridge would have had a lasting adverse impact to those same businesses, as well as all others fronting Ocean Avenue.
The "improvement in the traffic flow patterns on the Boynton Beach side of the waterway" (the elimination of the "jog" between Ocean Avenue and State Road 804) is, by the Department's own admission and the proof at hearing, of no significant import.
The Department's final basis for selecting the new alignment, that:
... business in the general area of downtown Boynton Beach will not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street...
is likewise unpersuasive. The Department undertook no study that would demonstrate what businesses existed in the "general area" of downtown Boynton Beach or how, if at all, they would be affected by the closure of the Ocean Avenue alignment during construction. While the businesses along Ocean Avenue would be affected if the bridge was closed during construction, the permanent removal of that structure is by far more significant to their enterprises than its temporary closure.
In selecting the Second Avenue alignment, the Department did note "certain disadvantages," but felt they were "overridden by the above noted considerations." Among those disadvantages was the adverse impact to one acre of the mangrove forest. The Department undertook, however, no meaningful evaluation of the impacts its project would have on the environment, and failed to address the impact of "shading" and other adverse impacts that could occur from construction of the bridge. Rather, the Department deferred all considerations to the design stage to see if impacts could be mitigated. Such approach does not comport with the Department's obligation to assess the environmental impacts of its project during site selection, and leaves its analysis wanting.
In all, the Department's decision in 1977 to relocate the bridge to the Second Avenue alignment did not include a balanced consideration of the factors it was charged by law with evaluating.
The Department's second evaluation.
Following the Department's issuance of it Final Negative Declaration in 1977, nothing was done on the project until 1980 due to a lack of funding. Following that time, the Department employed a consultant to prepare the construction and right-of-way maps. These plans were completed in June 1982.
In August 1983, the Department's right-of-way acquisition agents performed a routine review of the project in order to activate the right-of-way acquisition phase. They reported that the updated right-of-way costs had substantially increased on the Second Avenue alignment, that future average daily traffic did not justify the need for a major improvement, and that a reassessment of the project was justified since a number of years had elapsed since the previous impact was assessed. 8/
Notably, in the intervening years since the Department's Final Negative Declaration, Coconut Lane had changed from a street with one vacant house on its north side to a street that was substantially built-out. Ocean Avenue, east of the waterway, had likewise built-out, and some of the lots the Department had proposed in 1977 to acquire for an embankment approach, if the Ocean Avenue alignment had been selected, were then occupied by houses. In the intervening years, Ocean Ridge had also adopted a comprehensive plan which, pertinent to this case, sought to preserve the mangrove forests, "scenic" A1A, and the bridge at its existent location. Considering the significant changes that had occurred between 1977 and 1984, a reassessment of the project was justified.
The Department, following the report of its right-of-way acquisition agents, did not, however, reassess the project or address the comprehensive plan of Ocean Ridge. Rather, it relied on its Final Negative Declaration of 1977 as having adequately assessed the propriety of its choice between the two alignments. For the reasons heretofore discussed, such reliance was misplaced.
Instead of reevaluating the project, the Department directed its Bureau of Value Engineering to simply undertake a study of the feasibility of replacing the bridge and providing improvements on the existing alignment within existing right-of-way, without new takings, to minimize impact. That bureau's report, issued in March 1984, concluded that while it was possible to build a four-lane bridge on the existing alignment, without new takings, that the apparent savings of $5.3 million envisioned by such an option over the Second Avenue alignment was offset by the accumulation of performance and design compromises that needed to be made. 9/
The bureau, as a consequence of Governor Graham's Executive Order No. 81-105, issued September 4, 1981, also considered whether two or four lanes were needed for the bridge over the waterway. It concluded that, if the Department's traditional practice of assessing need for a road or bridge based on average daily traffic (ADT) were utilized, the "future road network, population, growth, attraction, travel patterns and forecasts of the Palm Beach County Metropolitan Planning Organization [MPO]" do not justify widening to four lanes. The bureau suggested, however, that the four-lane alignment at Second Avenue should be retained because peak hour traffic is much heavier than ADT. Its report did not, however, quantify peak hour traffic, and, as discussed infra, such traffic does not justify widening to four lanes.
By memorandum of March 16, 1984, the Department's Secretary proposed "to go with the Boynton Beach Boulevard plans," and concluded:
It is my professional opinion that realignment to Boynton Beach Boulevard will better serve the transportation and economic needs of the citizens and merchants with the City of Boynton Beach....
No mention was made of the needs of the citizens of Ocean Ridge or the region.
On March 26, 1984, Lopez-Torres filed a petition for a section 120.57(1) hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings. Subsequently, petitions to intervene were granted on behalf of Ocean Ridge, Boynton Beach and the Audubon Society of the Everglades.
The Audubon Society of the Everglades is a Florida nonprofit corporation whose purpose is to protect environmental resources and to promote the use, enjoyment and public awareness of environmental resources. Its membership uses, enjoys and frequents the mangroves forest and adjoining waters that would be affected by the proposed project.
Adequacy of the Department's evaluation.
While the proof at hearing demonstrated that the existent Ocean Avenue bridge needed to be replaced, it also demonstrated that the Department's evaluation of the four-lane alignment was deficient, as heretofore discussed, and that the need for four lane improvements on either the Second Avenue alignment or Ocean Avenue alignment could not be justified by average daily traffic or peak-hour traffic. Rather, a two-lane configuration would be adequate to handle traffic within the Department's 25-year planning horizon or within any other reasonably reliable horizon. Further, it is not necessary to eliminate the 700-foot "jog" on US1. Rather, a simple extension in the length of the turn lanes can cure any existing or foreseeable traffic engineering problems at that location.
In evaluating alternatives upon replacement of the existing structure, the Department overlooked or failed to seriously address a two-lane configuration. At hearing, conceding that a two-lane structure would provide adequate capacity, the Department sought to buttress its decision to utilize a four-lane structure by alluding to other factors that could lead one to elect such configuration over a two-lane configuration, such as: the existence of four-lane approach roads and "Q" build up. Such proof is not, however, compelling in this case because the record demonstrates that the Department did not address the design of a two-lane structure and, therefore, never evaluated or attempted to conform such structure to the existent site. Other testimony offered by the Department, that the "footprint" of a two-lane structure would not substantially vary from that of a four-lane structure is likewise not persuasive. Rather, the two-lane structure would require less right-of-way than a four-lane structure, and its construction costs would be less. 10/
In evaluating the replacement of the bridge, the Department has established a 25-foot clearance ostensibly because it is mandated by the Coast Guard or Corps of Engineers, and because it will reduce the bridge openings experienced by the current 10-foot clearance bridge by two thirds. While such clearance will reduce bridge openings, and thereby increase the life of bridge machinery and reduce inconveniences to motorists, it is not mandated by the Coast Guard or the Corps of Engineers. Since the movable bascule bridge
provides unlimited clearance in the open position, those agencies do not normally mandate the closed vertical clearance; however, they do seek to obtain as much clearance as possible during their permitting process. Such agencies have recently permitted 21-foot clearances. Considering the fact that the height of the replacement structure may reasonably bear some relationship to the adverse impacts to the area on Ocean Avenue east of 6th Street, the Department erred in failing to consider alternative elevations for the replacement structure.
While relocation of the bridge to Second Avenue is consistent with the MPO and the comprehensive plans of Palm Beach County and Boynton Beach, it is contrary to the comprehensive plan of Ocean Ridge and the Department made no attempt to harmonize such plans.
Conclusion
Based on the findings heretofore set forth, it is concluded that in electing to site the subject bridge at Second Avenue the Department abused its discretion because it failed to appropriately take into account future as well as present needs, all pertinent local government comprehensive plans, and the total environment of the community and region, including land use, entrepreneurial decisions, population, travel patterns, traffic control features, ecology, stormwater management plans, pollution effects, aesthetics, safety, or social and community values.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Statement of the case
In 1984, Lopez-Torres challenged the proposed relocation, and the matter was referred to the Division of Administrative Hearings (DOAH) to conduct a formal hearing. The dispute was, however, resolved prior to hearing through the entry of a summary recommended order which concluded that the Department could not site the bridge within the territorial limits of Ocean Ridge contrary to that town's comprehensive plan.
On review, the Department rejected that hearing officer's conclusion, and found, as a matter of law, that it had plenary power to locate state roads and bridges. However, instead of remanding the case to DOAH for a full evidentiary hearing on the other issues that were raised, the Department, without benefit of an evidentiary record, entered a final order that the bridge be built at the new location. 11/
Following the entry of the Department's final order, petitioners and intervenors, Audubon Society of the Everglades and Ocean Ridge, appealed to the Fourth District Court of Appeal. Pertinent to this case, that court concluded that while the Department's power to plan and construct roads and bridges is plenary, it is not absolute, but is limited to a lawful exercise of the Department's discretion. Accordingly, the court reversed the Department, and remanded the case for a full section 120.57(1) hearing. The court also certified several questions to the supreme court. Lopez-Torres v. Department of Transportation, 488 So.2d 848 (Fla. 4th DCA 1986).
The Supreme Court took jurisdiction, and concurred with the Fourth District's conclusion that, while plenary, the Department's authority is not absolute, but is limited to a lawful exercise of its discretion. Department of Transportation v. Lopez-Torres, 526 So.2d 674 (Fla. 1988). Pertinent to this case, the court stated:
Although the primary responsibility for planning the location of state roads and bridges rests with the Department of Transportation, local governments are required to develop and adhere to comprehensive planning programs pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act (Act) (codified at section 163.3161-.3215), Section 163.3161, Florida Statutes (1985). Among the issues to be included in a community's plan are those issues addressing existing and proposed transportation routes. The intent of the Act was to encourage and assure coordination between state and local levels of government in planning and development activities... A careful reading of the Act in pari materia with
the... [Florida Transportation
Code]... reflects that local governments and DOT should cooperate and coordinate their transportation planning efforts to the greatest extent possible; but the Act does not divest the DOT of its plenary power to plan and construct roads and bridges...
This is not to say, however, that the DOT's power, while plenary, is
absolute... [T]he 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 consideration of local conditions.
... Whether the DOT abused its
discretion is a question of fact that must be determined in a full evidentiary hearing.
Id. at page 676. Accordingly, the Court concluded that Lopez-Torres and the intervenors had been denied due process of law because no full evidentiary hearing had been held, and remanded the case for a full hearing on the issue of whether the Department abused its discretion in deciding to relocate the subject bridge.
Following remand, the Department forwarded the matter to DOAH with the request that the remand requirements be complied with. Upon filing with DOAH, the undersigned was assigned as the hearing officer, and a formal evidentiary hearing was held as mandated by the court.
Standing
Pertinent to this proceeding, Section 120.57, Florida Statutes, provides:
The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency...
"Party" is defined by Section 120.52(12), Florida Statutes, to mean:
(b) Any ... person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.
Chapter 120, Florida Statutes, does not define substantially affected persons. The Florida courts have, however, adopted the federal "injury-in-fact" and "zone of interest" tests governing standing. Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985). Under this two-prong test, a person is substantially affected if he can demonstrate that he will suffer "injury-in-fact" which is of sufficient immediacy to entitle him to relief and the injury is of a type or nature which the proceeding is designed to protect (the "zone of interest"). The first aspect of the test deals with the degree of injury, and the second with the nature of the injury. Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).
Here, Lopez-Torres owns a home sited on a parcel of property abutted on the north and west by mangrove forest. So located, the home offers a pleasant and tranquil life-style. Built as proposed, the new bridge and approach road would result in a taking of their property, such that the new four-lane road would encroach to within 20 feet of their back door, and substantially adversely impact their property, their life-style, and the abutting properties. Under such circumstances, they have demonstrated the requisite standing to challenge the propriety of the Department's proposed action.
Ocean Ridge and Boynton Beach have, likewise, demonstrated standing. The Local Government Comprehensive Planning and Land Development Regulation Act and the Florida Transportation Code reflect that local governments and the Department should cooperate and coordinate their transportation planning efforts to the greatest extent possible. Department of Transportation v. Lopez-Torres, supra. Here, the comprehensive plan of Ocean Ridge favors retention of the bridge at its current alignment and the comprehensive plan of Boynton Beach favors the new alignment. Under such circumstances, Ocean Ridge and Boynton
Beach have demonstrated standing to oppose or support, respectively, the property of the Department's action.
The Audubon Society of the Everglades has, likewise, demonstrated standing. Its membership uses, enjoys and frequents the mangrove forest and adjoining waters that would be affected by the proposed project, and its corporate purpose is to protect environmental resources and to promote the use, enjoyment and public awareness of those resources. Under such circumstances, the Audubon Society of the Everglades has standing to participate in these proceedings.
The propriety of the proposed relocation
The Department's authority to plan and construct roads and bridges, while plenary, is not absolute, but is limited to the lawful exercise of its discretion. Among the constraints placed upon the Department, is the obligation to comply with the statutory scheme authorizing such construction, including cooperating and coordinating with local levels of government to the greatest extent possible.
Pertinent to this case, Section 339.155(2), Florida Statutes (1987), requires that the Department consider the following factors in developing a transportation plan:
Future as well as present needs;
All possible alternative modes of transportation;
The joint use of transportation corridors and major transportation facilities for alternate transportation and community uses;
The integration of any proposed system into all other types of
transportation facilities in the community;
Consistency with regional comprehensive plans and local government comprehensive plans so as to contribute to the management of orderly and coordinated community development; and
The total environment of the community and region, including land use, entrepreneurial decisions, population, travel patterns, traffic control features, ecology, stormwater management plans, pollution effects, aesthetics, safety, and social and community values.
Here, Lopez-Torres, Ocean Ridge and the Audubon Society of the Everglades have established that the Department failed to reasonably address or assess future as well as present needs, local government comprehensive plans, land use, entrepreneurial decisions, population, travel patterns, traffic control features, ecology, stormwater management plans, pollution effects, aesthetics, safety, or social and community values in proposing the new alignment of the Ocean Ridge-Boynton Beach bridge. 12/ While the Department's Final Negative Declaration mentioned each of these factors, its analysis and treatment was superficial. Accordingly, having failed to reasonably address the
criteria prescribed by law, it is concluded that the Department abused its discretion in electing to site the bridge at its new location. 13/
During the course of this proceeding, the Department contended that whether it abused its discretion was to be evaluated as of 1984, and that subsequent events were not relevant to that determination. While the Department's position is legally incorrect, it is of little consequence in the resolution of this dispute since the proof failed to demonstrate any significant change in circumstance since that time. See: Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978).
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which vacates the Department's
decision to relocate the bridge between Ocean Ridge and Boynton Beach.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June 1989.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989.
ENDNOTES
1/ Ocean Ridge also contended that the new road would result in increased traffic, restrict access for emergency vehicles, and remove parking spaces from the town hall. The proof demonstrates, however, that such will not be the case.
2/ Observed during the view.
3/ When the Department issued its Draft Negative Declaration in 1977, discussed infra, the home the Lopez-Torres now own was vacant and for sale, and the remainder of the property lying along the north side of Coconut Lane was undeveloped. Today, however, that stretch of Coconut Lane is substantially developed.
4/ During the course of these proceedings, petitioners suggested that an alternative to replacement of the bridge would be its continued maintenance. The proof demonstrates, however, that the bridge fails to meet current design criteria and is otherwise in need of replacement.
5/ The Department actually began to evaluate the need to replace the Ocean Avenue bridge in 1968, but it was not until 1975 that the Department seriously addressed the issue.
6/ The Draft Negative Declaration was not offered in evidence but, according to the proof, the Final Draft Negative Declaration comports with its findings.
7/ The Department also considered a four-lane, 65-foot fixed span at both locations and a "do-nothing alternative" (remove the existing bridge and not replace it). The Department concluded that such alternatives were not appropriate, and the proof supports its conclusion. The Department did not, however, consider a two-lane replacement bridge.
8/ In building a transportation facility, the Department progresses through various stages from the inception of the project to its conclusion. These stages include the development and environmental stage (the Negative Declaration) which includes the location and design of the project, the preparation of construction plans and right-of-way maps, permitting, acquisition of right-of-way, advertisement for bids and contracting, and construction.
Prior to advancing with a major phase of a project, the Department is required to reevaluate the project to determine if the project or conditions surrounding it have changed to the extent that the project should be restudied. Such was the situation in August 1983, when the Department sought to activate the right- of-way acquisition phase. (See FHWA letter of February 16, 1983, and Value Engineering Study contained in petitioners' exhibit 1.)
9/ The cost of the project in March 1984 at the Second Avenue alignment was estimated to be $14 million and at the Ocean Avenue alignment, within existing right-of-way and without new takings, was estimated to be $8.8 million. There was no comparison of the two alignments as originally proposed in 1977, and no updating of the cost of the original Ocean Avenue alignment in 1984. Since 1984, the Department has not updated its costs estimates, "due to the pending litigation," but there is no proof such costs have significantly increased.
10/ At hearing, the best "estimate" offered by the Department Concerning the extent of right-of-way and cost of a two-lane bridge was that it would be between "50 and 100 percent" of the cost of a four-lane bridge.
11/ On appeal to the Fourth District Court of Appeals, the Department defended its course of action on the ground that it "was forced to decide the issues as a matter of law because it had no power to remand a recommended order." Lopez- Torres v. Department of Transportation, 488 So.2d 848, 850 (Fla. 4th DCA 1986). While the Department may perceive such to be the state of administrative procedure, its perception is erroneous. Wilson v. Department of Administration,
538 So.2d 139 (Fla. 4th DCA 1989), and Cohen v. Department of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). DOAH has routinely accepted remand under such circumstances.
12/ It should be noted that the Department's analysis of many of these factors, including the ecology, stormwater management and pollution effects, was cursory at best. Rather than addressing these issues at the planning stage, the Department opted to defer their consideration, and possible mitigation or amelioration, to the design or permitting stage. By such process, the Department failed to reasonably inform itself of the adverse impacts of its plans such that it could not have made an informed or balanced consideration of the various criteria it was charged by law to consider.
13/ In concluding that the Department abused its discretion in this case, it is not suggested that one alignment or one configuration is superior to another.
Rather, it is concluded merely that the Department's evaluation failed to comport with existing law and, therefore, its decision cannot be sustained.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4564
The proposed findings of fact submitted by petitioners and intervenors, Town of Ocean Ridge and Audubon Society of the Everglades, are addressed as follows:
Addressed in paragraphs 1, 2, and 4.
Addressed in paragraphs 31 and 32, as well as the conclusions of law.
Addressed in paragraphs 9-11.
Addressed in paragraphs 6-9, 27, and 28.
Addressed in paragraph 33.
Addressed in paragraphs 34 and 35.
Addressed in paragraphs 13, 34-36, and footnote 9, otherwise rejected as not supported by the proof.
Addressed in paragraphs 2 and 3.
Addressed in paragraphs 11, 13, and 22.
Addressed in paragraph 22.
Addressed in paragraphs 21, 23, 28, 31, and footnote 9, otherwise rejected as not supported by the proof.
This finding of fact is a summary of previous findings and therefore duplicitous. As such, it has been previously addressed, and also is covered, to the extent supported by the proof, in findings of fact 1-38.
The Department's proposed findings of fact are addressed as follows:
Addressed in footnote 5.
Addressed in paragraphs 17 and 19.
Addressed in paragraph 20.
4-5. Addressed in paragraphs 18 and 21.
Addressed in paragraph 25.
Addressed in paragraphs 26-29.
Addressed in paragraph 31.
Addressed in paragraph 20.
Not relevant or necessary to result reached.
Addressed in paragraph 12.
Addressed in paragraph 37.
Addressed in paragraphs 34 and 35.
Addressed in footnote 8.
Not relevant.
Addressed in paragraph 36.
To the extent relevant, addressed in paragraph 26 and footnote 8.
To the extent relevant, addressed in paragraphs 9-11.
Addressed in paragraph 8 and footnote 1.
Addressed in paragraphs 2, 3, and 23.
To the extent pertinent, addressed in paragraph 37.
Rejected as contrary to the proof.
COPIES FURNISHED:
Hugh MacMillan, Jr., Esquire Sullivan & Nicoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33401
G. Steven Pfeiffer, Esquire Post Office Box 5948 Tallahassee, Florida 32311
Maxine F. Ferguson, Esquire Paul J. Martin, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Paul J. Nicoletti, Esquire Sullivan & Nicoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33401
Raymond A. Rea, Esquire City Attorney
City of Boynton Beach Post Office Box 310
Boynton Beach, Florida 33425-0310
Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Thomas H. Bateman, III, Esquire General Counsel
Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DR. MRS. AUGUSTO LOPEZ-TORRES,
Petitioners,
and
TOWN OF OCEAN RIDGE and AUDUBON SOCIETY OF THE EVERGLADES,
Intervenors
vs. CASE NO. 88-4564
(formerly 84-1234)
DEPARTMENT OF TRANSPORTATION,
Respondent,
and
CITY OF BOYNTON REACH,
Intervenor.
/
FINAL ORDER
The Florida Department of Transportation, Respondent, proposed to relocate a bridge which spans the Intercoastal Waterway between the City of Boynton Beach and the Town of Ocean Ridge by constructing a new four-lane, twenty-five foot clearance bascule bridge, 700 feet north of the existing two-Lane, ten foot clearance bascule bridge. Petitioners, Dr. and Mrs. Augusto Lopez-Torres, challenged Respondents decision, contending that the decision constitutes an abuse of discretion.
A formal hearing in this cause was held February 21-23, 1989, in Palm Beach Gardens, Florida, before Hearing Officer William J. Kendrick, of the Division of Administrative Hearings. A Recommended Order was issued June 2, 1989.
Subsequent to the issuance of the Recommended Order, the parties have reached a Settlement in this cause, which is attached hereto as Exhibit A.
Pursuant to the settlement reached by the parties, Respondent, Florida Department of Transportation, agrees that it may at its own discretion undertake a new study of the location and design of the State Road 804 Boynton Beach Bridge over the Intercoastal Waterway in Palm Beach County, Florida, State Project No. 93200-1504, currently assigned WPI No. 4118055. Petitioners, Dr. and Mrs. Augusto Lopez-Torres have withdrawn their request for hearing concerning the Respondent's previous bridge location and design. Said withdrawal is without prejudice in than Petitioners may initiate an appropriate
administrative proceeding or legal action should the Respondent subsequently decide to proceed with the project.
The issues in this cause having been rendered moot by the settlement reached by the parties, it is ordered that this cause is DISMISSED.
DONE AND ORDERED this 21st day of September, 1989.
BEN G. WATTS, P.E.
Interim Secretary
Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399
The following information is required by law to be included in all Final Orders:
Judicial review of agency final orders may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, MS 58, 605 Suwannee Street, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within thirty (30) days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.
Copies furnished:
William J. Kendrick Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Hugh MacMillan, Jr., Esquire Sullivai & Ncoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33401
Steven Pfeiffer, Esquire Post Office Box 5948 Tallahassee, Florida 32311
Paul J. Nicoletti, Esquire Sullivan & Nicoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33401
Raymond A. Rea, Esquire City Attorney
City of Boynton Beach Post Office Box 310
Boynton Beach, Florida 33425-0310
Maxine F. Ferguson, Esquire Paul Martin, Esquire Department of Transportation 605 Suwannee Street
Tallahassee, Florida 32399
Rick Chesser, District Secretary Department of Transportation
780 S.W. 24th Street
Ft. Lauderdale, Florida 33315-2696
================================================================= EXHIBIT A TO AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DR. AND MRS. AUGUSTO LOPEZ-TORRES,
Petitioners,
and
TOWN OF OCEAN RIDGE and AUDUBON SOCIETY OF THE EVERGLADES,
Intervenors,
vs. CASE NO. 88-4564
(formerly 84-1234)
DEPARTMENT OF TRANSPORTATION,
Respondent,
and
CITY OF BOYNTON BEACH,
Intervenor.
/
STIPULATION
The parties to this action, Dr. and Mrs. Augusto Lopez-Torres, Petitioners, and the Department of Transportation, Respondent, hereby stipulate and agree as follows:
The Florida Department of Transportation has determined that a new study for the location and design of the bridge contained in Project Number 93200-1504 shall be ordered to begin at the discretion of the Department.
Because of the Department's decision to have a new study performed, the reason for Petitioner's challenge to the Department's 1984 decision has been eliminated. Petitioners hereby withdraw their request for an administrative hearing made on March 26, 1984.
Upon execution of this stipulation, there then being no pending request for a formal hearing, the Department shall enter a Final Order dismissing this action and closing the file.
EXHIBIT A
The Department agrees that this new study of the location and design of the project shall be based upon new and updated data whenever such data can be practicably obtained. Further, the new study will conform to all applicable, current statutes and procedures. The new study will be supervised by a District Project Manager who was not involved in the Department's 1984 study. The Department agrees that it will take no action to continue with Project Number 93200-1504 based upon studies that were conducted prior to the date of this stipulation.
Each party will bear his or its own attorney's fees and costs.
Signed this 20th day of September, 1989.
HUGH MACMILLAN, JR., ESQUIRE PUAL J. MARTIN, ESQUIRE
Sullivan & Nicoletti, P.A. Florida Department of
317 Tenth Street Transportation
West Palm Beach, FL 33401 605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0458 Attorney for Petitioners Attorney for Respondent
G. STEVEN PFEIFFER, ESQUIRE 1000 Friends of Florida
P.O. Box 5948
Tallahassee, Florida 32311 Co-Counsel for Petitioners
| Issue Date | Proceedings |
|---|---|
| Jun. 02, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 21, 1989 | Agency Final Order | |
| Jun. 02, 1989 | Recommended Order | DOT failed to reasonably address statutory criteria such as the ecology and stormwater management when siting new bridge and thus abused its discrection |
