STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS ) OF GLADES COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1227

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on July 29, 1989, in Moore Haven, Florida.

APPEARANCES

For Petitioner: Michael J. Rider, Esquire

Post Office Box 608

Lake Placid, Florida 33852

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

1. Whether the functional classification of State Road 78 situated in Glades County, was properly reclassified in the functional evaluation which took place prior to the January 25, 1989, and resulted in the notice of jurisdictional transfer of the road from the state to the county.

   
   

2. Whether the road for which responsibility is being transferred was brought to a physical condition commensurate with contemporary roads of like age and existing functional classification within Glades County.

PRELIMINARY STATEMENT

By letter dated February 15, 1989, the Glades County Board of County Commissioners (hereinafter the Board) requested an administrative hearing to contest the transfer of jurisdictional responsibilities from the state to the county for Section 05040 of State Road 78 from State Road 29 to U.S. Highway 27. The Board specifically challenges the Florida Department of Transportation's (hereinafter DOT's) functional classification of the road and the DOT's determination that the road had been brought to a physical condition commensurate with contemporary roads within Glades County.

During the hearing, the Petitioner presented five witnesses and submitted one exhibit. The Respondent called six witnesses and identified fifteen exhibits. In order to authenticate and clarify certain exhibits, Respondent was granted leave to submit two affidavits post hearing. All of the exhibits submitted by the parties were admitted into evidence. In the public hearing portion of the proceeding, four individuals spoke against the reclassification of the road as a rural major collector, to be maintained by the county.

A transcript of the hearing was filed with the Division of Administrative Hearings on September 11, 1989. Proposed Recommended Orders were timely filed by both parties. Rulings on the proposed findings of fact are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. In 1987, the Respondent DOT began its review of the public roads within Glades County in order to assign maintenance and jurisdictional responsibility in accordance with the current functional classification of each road. By law, the DOT is required to conduct such a review every five years.

   
   

2. Section 05040 of State Road 78 is located within the unincorporated area of Glades County. This paved, two-lane road segment is 14.8 miles in length, and predominantly runs in an east-west direction. Approximately two miles of the eastern portion veers to the north, where the segment then connects with State Road 25 (U.S. Highway 27).

   
   

3. The western terminus of this road segment adjoins State Road 29, and the eastern terminus as mentioned previously, adjoins State Road 25 (U.S. Highway 27). There is a radical change in direction at both ends where the segment connects with the two adjacent roads. At the western terminus, State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 runs in a southwesterly to northeasterly direction.

   The southwesterly portion of State Road 29 enters into Hendry County and extends to LaBelle, the county seat. At the eastern terminus, State Road 25 (U.S. Highway 27) runs for approximately five miles before it reconnects with another portion of State Road 78 which runs in a northeasterly direction around the border of Lake Okeechobee into Okeechobee County, and onto the City of Okeechobee, the county seat.

   
   

4. Through the use of approximately four miles of the southwesterly portion of State Road 29 and approximately five miles of the easterly portion of State Road 25 (U.S. Highway 27), State Road 78 becomes a transportation corridor which connects Hendry County, Glades County, and Okeechobee County. This corridor is used by members of the Gulf Citrus Growers Association in Hendry County to transport citrus to market in other parts of the state.

   
   

5. State Road 29 and State Road 25 (U.S. Highway 27) are functionally classified as arterial roads on the state highway system.

   
   

6. During the functional classification evaluations within Glades County, Section 05040 of State Road 78 was reviewed by DOT. As part of the process, an inventory worksheet was used to determine how the road would be classified under the current scoring system. A Rural Arterial Inventory Worksheet (Respondent's Exhibit 15) was used to determine the roadway's System Attribute Score (SAS).

7. As part of the evaluation process, the system element coefficient must be located within Table Number 4 of Chapter 14-12, Florida Administrative Code. The Administrator of Transportation Data for District 1 correctly determined that the system element coefficient was 5, and the rural element number was 12.

   
   

8. The first attribute reviewed on the worksheet in order to obtain the SAS was the Traffic Factor. Under the definitions found in Table 1 of Chapter 14-12, Florida Administrative Code, the Traffic Factor is calculated by multiplying the Average Daily Traffic Count by the county's normalizing coefficient Tpd of 1.73. Again, the administrator correctly assessed the value of 2,782 on the worksheet.

   
   

9. Usually, a score below 3,000 under the Traffic Factor results in an evaluation score of "zero" on the Rural Arterial Inventory Worksheet. However, Table Number 1 of Chapter 14-12, Florida Administrative Code, notes that when 50% of traffic volume is non-local traffic, a score of "one" is placed on the worksheet instead of a "zero."

   
   

10. Competent and credible testimony presented at hearing from local citizens, who had the opportunity to know the composition of the traffic on the road segment, revealed that a relatively small percentage of Section 05040 of State Road 78 traffic was local. The majority of the traffic was comprised of out-of-county motorists. Based upon this testimony, the Traffic Factor score on the worksheet should be changed from "zero" to "one."

    
    

11. The second attribute reviewed on the worksheet was the Access Factor. This score is calculated by dividing the average daily traffic (ADT) by the number of access points per mile. Instead of using available information with the DOT or asking for information from local authorities regarding this attribute, the administrator grossly overestimated that the road segment contained twenty access points per mile.

    
    

12. No reasonable basis was presented at hearing by the administrator for his "estimate" of twenty access points per mile on a rural segment in one of the more remote and under populated areas within his district.

    
    

13. The videotape presented at hearing clearly demonstrates that there are not twenty access points per mile on this roadway. Unrefuted testimony presented at hearing revealed that approximately twenty-five families reside along this 14.8 mile stretch of road. There is also a large rock mine, a cemetery, and the county landfill.

    
    

14. Respondent's Exhibit 5, the General Highway Map of Glades County, shows that a DOT facility is located on this road segment. There are four roads which intersect the road segment and one railroad grade crossing. A locked gate at the Caloosahatchee Rock Mine has a driveway which connects to the road.

    
    

15. To deny the road segment the minimum score of "one" on the access factor, the DOT would have to estimate in its calculation that there are more than ten access points per mile on this road. Based upon the evidence presented at hearing, there are far less than ten access points per mile on this road segment. Therefore, the Access Factor score on the worksheet should be changed from "zero" to "one."

    
    

16. The Trucks and Network Factor attributes which each received a score of "one" from the administrator. These scores were not challenged by Petitioner.

17. The Extent of Road attribute was not properly tested by the administrator. Under Rule 14-12.015(2), Florida Administrative Code, the entire State Road 78, along with the southwesterly portion of State Road 29, and the eastern portion of State Road 25 (U.S. Highway 27) should be utilized for the Extent of Road (miles) measurement. As the entire length of the extended transportation corridor exceeds twenty miles, the score should be "one" instead of "zero."

    
    

18. The Mobility Attribute was not properly assessed. Rule 14-12.015(2), Florida Administrative Code, allows the extended transportation corridor to be used to determine the total number of counties in which the road is located. Testimony presented at hearing regarding the use of the road segment as part of the transport route of citrus from Hendry County through State Road 78 in Glades County to Okeechobee County supports the finding that the road is located in three counties. The score as to the Mobility Attribute should be changed from "zero" to "one."

    
    

19. Section 05040 of State Road 78 is in an overall physical condition which is at least commensurate with contemporary roads of like age and existing functional classification (rural major collector) within Glades County.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.57(2) and 335.04(1)(b)3, Florida Statutes.

    
    

21. Section 335.04(1)(b)1, Florida Statutes requires that DOT apply quantitative criteria "adopted by rule pursuant to Chapter 120" to all of the agency's evaluation and functional classifications of roads within the state. The functional classification criteria are located within Chapter 14-12, Florida Administrative Code.

    
    

22. The criteria used to evaluate rural roads such as Section 05040 of State Road 78, are in Rule 14-12.015, Florida Administrative Code. During the administrative hearing, it was determined that four attribute scores were not properly assessed by DOT under the rule. When the correct scores were applied to the attributes and the formula used to determine the roadway's System Attribute Score (SAS) was calculated pursuant to Rule 14-12.015(3), Florida Administrative Code, the numerical result was a SAS score of 30. Table Number 5 in Chapter 14-12, Florida Administrative Code, provides that a rural road with a SAS score between 30-75 has the probable functional classification of a rural minor arterial.

    
    

23. Section 335.04(b)2, Florida Statutes, allows the DOT to transfer responsibility for a road to another governmental entity when the DOT determines through the use of the factors set forth in Section 335.04(b)1, Florida Statutes, and Chapter 14-12, Florida Administrative Code, that the road has changed function. In this case, DOT misapplied the quantitative criteria set forth in the rules adopted by the agency and arrived at the incorrect conclusion that the road had changed function. As the underlying determination that a change in function was incorrect, the DOT has not established its authority to transfer to jurisdiction from the state to the county for this particular road segment. See City of Palm Bay v. Department of Transportation, 541 So.2d 1295 (Fla. 1st DCA 1989).

RECOMMENDATION

Accordingly, it is RECOMMENDED:

That the Department of Transportation enter a Final Order that the Department's functional classification of the road segment was incorrect, that the functional classification of the road as a rural minor arterial be reinstated, and that the jurisdiction over the road remain with the Department.

DONE and ENTERED this 2nd day of October 1989, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1227

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See Preliminary Statement.

2. Rejected. Not a factual finding.

3. Accepted.

4. Accepted. See Preliminary Statement.

5. Accepted. See Statement of the Issues.

6. Accepted.

7. Accepted.

8. Rejected. See HO #19.

   1. Accepted

   2. Accept the first sentence. The second sentence is rejected as irrelevant.

   3. Accepted.

   4. Accepted.

   5. Accepted.

9. Accepted.

10. Accept that the Hearing Officer found the road to be improperly classified. The rest is rejected as conclusionary.

    1. Accepted. See HO #10.

    2. Accepted. See HO #4.

    3. Accepted. See HO #10.

11. Accepted. See HO #4.

12. Accepted.

13. Rejected. Irrelevant.

14. Rejected. The financial ability provision within the

statute was repealed, and a determination cannot be made on the basis of factors outside rule or statute.

Respondent's proposed findings of fact are addressed as follows:

1. Accept the first two sentences. The third sentence is rejected. See HO #2. Fourth sentence is accepted. See HO #5. Fifth sentence is accepted. See HO #7. Sixth sentence is rejected. See HO #7-#18. Seventh sentence is accepted. See HO #8. Eighth sentence is rejected. Improper conclusion. Ninth sentence is accepted. See Conclusions of Law. Tenth sentence is accepted. See Preliminary Statement.

2. Accepted. See HO #19.

3. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside the rule or statute.

COPIES FURNISHED:

Michael A. Rider, Esquire Post Office Box 608

Lake Placid, Florida 33852

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Ben G. Watts, P.E., Interim Secretary Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

BOARD OF COUNTY COMMISSIONERS OF GLADES COUNTY,

Petitioner,

vs. DOAH CASE NO. 89-1227

FLORIDA DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record of this proceeding along with the Recommended Order of the Hearing Officer have been reviewed. Respondent, FLORIDA DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the "Department," filed Exceptions to Recommended Order which have been considered and are addressed below.

FINDINGS OF FACT

The Findings of Fact in the Recommended Order are considered correct and are incorporated as part of this Final Order with the following exceptions:

Findings of Fact Nos. 17 and 18 are rejected as not consistent with Finding of Fact No. 2 and Florida Administrative Code Rule 14-12. Rule 14-12.015(2)(c) states:

(c) Rural Road - A rural road is generally an aggregation of rural segments which comprise an extended transportation corridor. Roads generally terminate where

there is a radical change in direction or in function. Usually a road has the same Florida Road Number throughout its length. In rural Minimum Attribute evaluations the "road" definition is only utilized for the extent of Road and Mobility attributes.

Thus, pursuant to this definition, a rural road terminates where there is a radical change in direction. In Finding of Fact No. 2, the Hearing Officer found that where State Road 78 adjoins State Road 29 to the west there is a radical change in direction. Likewise, where State Road 78 adjoins State Road

25 (U.S. Highway 2) to the [word omitted] there is a radical change in direction. Accordingly, the "road" to be evaluated for the Road and Mobility attributes is that portion of roadway designated as State Road 78 which runs

between State Road 29 and State Road 25 (U.S. Highway 27). The Hearing Officer improperly considered segments of both State Road 29 and State Road 25 in determining both the Road and Mobility attribute. As the length of the road is 14.802 miles, the Department's inventory worksheet score of zero for Extent of Road is correct. Also, because the "road" (State Road 78 between the intersection with State Road 29 and State Road 25) lies entirely within Glades County, the Department's inventory worksheet score of zero for Mobility is correct. (See copy of Respondent's Exhibit 4 attached hereto as Exhibit A.)

RESPONDENT'S EXCEPTION TO FINDINGS OF FACT

Respondent's Exception No. 1 is rejected as not supported by the Record. The only evidence before the Hearing Officer regarding the local or non-local nature of the traffic on the subject roadway was that evinced by the Petitioner. The Department failed to present any basis for its determination that the traffic utilizing the subject roadway was more that 50% local traffic.

Respondent's Exceptions No. 2 and 3 are accepted and are addressed above.

CONCLUSIONS OF LAW

The Conclusions of Law in the Recommended Order are rejected as premised upon an improper application of Florida Administration Code Rule 14-12. The Conclusions of Law are modified as follows:

The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.57(2) and 335.04(1)(b)3, Statutes.

Section 335.04(1)(b)1, Florida Statutes, requires that the Department apply quantitative criteria "adopted by rule pursuant to Chapter 120" to all of the agency's evaluation and functional classifications of roads within the state.

The functional classification criteria are located within Florida Administrative Code Chapter 14-12.

The criteria used to evaluate rural roads such as Section 05040 of State Road 78, are in Florida Administrative Code Rule 14-12.015. During the administrative hearing, it was determined that two attribute scores were not properly assessed by the Department under the rule. When the correct scores were applied to the attributes and the formula used to determine the roadway's System Attribute Score (SAS) was calculated pursuant to Florida Administrative Code Rule 14-12.015(3), the numerical result was a SAS score of 20. Under Table Number 5 in Florida Administrative Code Chapter 14-12, a rural road must achieve a SAS score of between 30-75 to be classified as a rural minor arterial.

Having failed the arterial test, Section 05040 of State Road 78 was placed in the next higher classification of rural major collector. As provided in Section 334.03(6), Florida Statutes, all collector roads in the unincorporated areas of the county are part of the county road system.

Section 335.04(b)2, Florida Statutes, allows the Department to transfer responsibility for a road to another governmental entity when the Department determines through the use of the factors set forth in Section 335.04(b)1, Florida Statutes, and Florida Administrative Code Chapter 14-12, that the road has changed functions. In this case, the Department's quantitative criteria as modified by the Findings of Fact demonstrates that Section 05040 of State Road

78 has changed function and should be classified as a rural major collector.

Accordingly, the Hearing Officer's Recommendation is rejected and it is

ORDERED that the Department's classification and jurisdictional assignment of Section 05040 of State Road 78 was valid and the road's physical condition being commensurate with like roads in the county, the jurisdictional transfer to the county should proceed under provisions of the statutes and rules.

DONE AND ORDERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida.

BEN G. WATTS, P. E.

Interim Secretary

Department of Transportation 603 Suwannee Street

Tallahassee, Florida 32399-0450

COPIES FURNISHED:

Veronica E. Donnelly Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1500

Michael A. Rider, Esquire Post Office Box 608

Lake Placid, Florida 33852

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

The following information is required by law to be Included in all Final Orders:

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceeding, Haydon Burns Building, 605 Suwannee Street, MS 38, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 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.

Docket for Case No: 89-001227

Orders for Case No: 89-001227