STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT WILENIUS and SARAH ) WILENIUS, WILLIAM H. STEVENS ) and MARY LOU STEVENS, and )
STEVENS & LAYTON, INC., a )
Florida Corporation, )
)
Petitioner, )
)
vs. ) CASE NO. 89-4196
)
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 May 21, 1990, in Fort Myers, Florida.
APPEARANCES
For Petitioners: J. Jeffrey Rice, Esquire
Goldberg, Goldstein & Buckley, P.A. Post Office Box 2366
Fort Myers, Florida 32902-2366
For Respondent: Edward M. Chew, Esquire
Florida Department of Transportation Post Office Box 1249
Bartow, Florida 33830 STATEMENT OF THE ISSUES
Whether Petitioner's application for a median opening permit should be granted.
PRELIMINARY STATEMENT
In April 1989, the Petitioners filed a letter with the Florida Department of Transportation (the Department) seeking the placement of another median cut on State Road 80 which would allow large vehicles to drive onto the easement that provides the Petitioners with ingress and egress to their real property where various businesses are located. The Department filed an Amended Notice of Intent to Deny Road Connection application on July 6, 1989, and a request for a formal administrative hearing was filed by the Petitioners for a de novo hearing on the matter.
During the hearing, the Petitioners offered thirteen exhibits and presented four witnesses. All of the exhibits were admitted into evidence except for Petitioner's Exhibit #10, which was proffered into evidence. Petitioner's Composite Exhibit #9 was admitted for the limited purpose of demonstrating that the sheriff's department and the fire department have written to the Department regarding a median cut at the proposed location.
The Department called two witnesses and filed four exhibits, which were admitted into evidence.
A transcript of the proceedings was filed with the Hearing Officer on June 7, 1990. Proposed recommended orders were timely filed by the parties. Rulings on the proposed findings of fact are in the Appendix of the Recommended Order.
FINDINGS OF FACT
Background
State Road 80 is part of the State Highway System. The road runs in an east-west direction from Interstate I-75 at Fort Myers in Lee County to U.S. Highway 27 in Hendry County.
The road improvement project currently under construction on State Road
80 involves the expansion of the road from two lanes to six lanes. A raised median separates the eastbound lanes from the westbound lanes. To provide access from either direction to homes and businesses that are adjacent to the road, turn lanes and median openings have been designed into the project. This is not a "limited access facility" as defined by Section 334.03(11), Florida Statutes. Rather, it is a "controlled access facility" as defined by Section 334.03(6), Florida Statutes. Service roads restore access to properties that were accessed from both directions prior to the improvements.
Pursuant to routine agency practices, the median openings were set at the "60% phase" of the project design in June or July of 1986.
Petitioner Stevens & Layton, Inc. is a Florida corporation in which Petitioners Robert Wilenius and Harvey W. Stevens are officers and directors. In September 1987, Petitioner Stevens and Layton had drawings of a site plan completed for the development of a commercial building complex. The plans for the buildings involved real property located behind an existing business that fronts State Road 80. The existing business had a driveway that accessed State Road 80. The owner of the entire parcel of land (which included the existing
business and the site of the proposed building complex) agreed that the existing driveway could be used as an access drive to the complex.
The site plans were reviewed by the Lee County Department of Community Development Review. On October 15, 1987, Lee County rejected the proposed site plan. Right and left turn lanes onto the property had to be provided by the developer, Stevens & Layton, Inc., before the project would be considered.
On November 10, 1987, a meeting was held that included the project engineer, John Bosserman, Robert Wilenius of Stevens & Layton, Inc., Patrick Hunt of Lee County Department of Community Development Review, and D. M. Heflin of the Florida Department of Transportation. During the meeting, Mr. Heflin confirmed that the proposed expansion of State Road 80 was of high priority in the area and should be let for bid in June 1988. Based upon this representation, the county decided to waive the requirement that the developer provide turn
lanes into the property during Phase I of the project. This construction phase involved the completion of an office building and a mini-storage warehouse.
During his revisions of the site plan after October 15, 1987, the professional engineer hired for the commercial building project obtained a copy of the Department's plans for the improvement of State Road 80. Evidence submitted at hearing shows that these plans were reviewed by the engineer on or before November 17, 1987. The plans reviewed show where the raised medians and the median openings were to be located in the future on the state road.
It is clear on these road improvement plans that the parcel of land on which the commercial building complex was to be located, was not going to receive direct access to the expanded state road from both directions. A median opening was not planned by the Department in the immediate area of the driveway into the complex. In addition, the closest median opening east of the driveway was not designed to accommodate long industrial vehicles that might approach the commercial building complex from the eastbound lanes. This median opening allows access to the Wilson property which is adjacent to the property in question. In addition, a service road from the former Wilson driveway which is now public right-of-way, restores access to the dominant estate in front of Petitioner's property from the eastbound lanes.
The Petitioners knew or should have known prior to their purchase of the real property involved in the commercial building complex that a median opening was not being provided by the Department for direct access into their property, which is behind the dominant estate which fronts the state road, both eastbound and westbound lanes of the improved State Road 80.
The Petitioners Robert Wilenius and Sarah Wilenius, with Harvey W. Stevens and Mary Lou Stevens, purchased the real property on which the commercial building complex developed by Petitioner Stevens and Layton, Inc. was to be located on January 8, 1988. This area of land was severed from the dominant estate that continues to include the business and the driveway that abuts State Road 80. In order for the Petitioners to have access to the property from the state road, the owner of the dominant estate granted the new owners of the back portion of the parcel a non-exclusive easement for roadway purposes, through the driveway and across the front of the parcel. The property, including easement, was purchased for less than $100,000.00 according to the documentary tax stamps on the deed.
After various revisions were made to the site plan, the development plans were approved for a Final Development Order from Lee County on January 12, 1988, with the following stipulation:
Frontage road agreement including sidewalk, to be submitted with phase one prior to C.O.
Right turn lanes to be constructed with phase two prior to C.O.
Based upon the site plan in evidence, it was anticipated in January 1988 that the future frontage road easement across the dominant parcel would connect with the paved access drive onto the Petitioners' property. Apparently, this frontage road easement would allow traffic from the eastbound lanes of State Road 80 to enter Petitioners' access drive from one of the median openings east of Petitioners' property.
In August of 1988, Phase One the commercial building complex was under construction. During this time period, Walter D. Stephens, P.E., the Acting Director of the Lee County Department of Transportation and Engineering, Division of Transportation Planning and Permitting, examined the proposed median crossover locations on State Road 80. Mr. Stephens opined on August 10, 1988, that if the Petitioners' commercial building complex were to have heavy construction vehicle (low-boy trailer truck) activity, these large vehicles would not be able to safely move from the first median opening east of the property onto the proposed frontage road under the following conditions: If a low-boy trailer truck made a left turn movement from the Wilson drive onto the frontage road to move west towards Petitioners' access drive, the back of the truck would still be on State Road 80 if there were other vehicles in the Wilson drive waiting in front of the truck to make the same turn. Patrick Hunt, the Development Review Supervisor for Lee County Department of Community Development, was promptly advised of Mr. Stephens' opinion.
A revised print of the site plan for the commercial building complex received the professional seal of the engineer on the project on November 14, 1988.
Lee County Department of Development Review approved the revised site plan on November 15, 1988.
It is unknown to the Hearing Officer exactly when the certificate of occupancy for Phase One of the development was issued. However, based upon the verified complaint filed by Petitioners in circuit court, the certificate was issued before the complaint was filed because Stevens & Layton was operating its contracting business from this location.
If Stevens & Layton proposed to go forward with Phase Two of their development on the property, they were obligated to construct right turn lanes prior to receiving a certificate of occupancy for the second stage of development.
The circuit court judge denied the temporary preliminary injunction, but encouraged the Department and the Petitioner to negotiate for a median relocation. The judge will hear the merits of the pending suit after the Petitioners have exhausted administrative remedies for a median opening providing direct access from eastbound and westbound lanes on State Road 80 to their property.
The Problem
The Petitioners are seeking to have the Department provide them with a median opening in front of the road access easement to their property in order to allow the 70' low-boy tractor trailer used in Stevens & Layton Inc.'s pipeline business to enter from the eastbound lane of State Road 80 without having to make a U-turn from the median opening east of the property.
The Petitioners maintain that a serious safety hazard could result to the tractor trailer or other traffic, if the current road design is allowed to remain in the area due to the tractor trailer's use of the median opening just east of Petitioner's drive.
Alternative Requests for Median Opening
One request for a median opening submitted to the Department by Petitioners requested a median opening that gives them a turn lane into their property from both the eastbound and westbound lanes of traffic from State Road 80.
The second alternative suggested by Petitioners is to place the median opening planned for the entry onto the Wilson property between the two existing driveways, still allowing those drives to remain in place. The proposed additional center driveway could carry two-way traffic and would have a sufficient turning radius for large trucks planning to turn left onto Petitioners' access easement from the dominant estate.
First Alternative
The first alternative suggested by the Petitioners would be approximately 240' west of the planned median opening that allows traffic to enter the drive in front of the Wilson property.
In other locales with similar development and a similar roadway design, the Department does not allow median openings within 660' of other median openings. Speed is one of the prime considerations. Longer acceleration and deceleration lanes are needed on roads with higher speeds such as this one, to allow drivers reaction time to use the openings. A short lane, such as the one proposed, would create a safety hazard and would not solve the problem the Petitioners are seeking to solve: the difficulty a driver would have with the turn of the long low-boy trailer from the eastbound lane into their access easement back to their property.
There is a conforming road connection which allows Petitioners a reasonable means of connection to the public roads system.
Second Alternative
The second alternative failed to detail information for all properties using the proposed median opening. In addition, there was no concurrence by all affected property owners on the joint driveway usage. The plan greatly enhances the value of Petitioners' property, which does not even front the existing road. The plan also significantly decreases the value of the adjoining Wilson property, the dominant estate to Petitioners' property, and the right-of-way previously purchased by the Department. The right-of-way was purchased to provide the dominant estate a reasonable means of connection to the public roads system from the driveway also used by Petitioner.
Additional Findings Why the Requested for Median Openings Should
Not Be Granted
The Petitioners' purchase and use of this back portion of the parcel was not contemplated by the road designers at the time the road improvement design with median placements went into effect.
Right-of-way was purchased by the Department to create a frontage road to provide reasonable access from the drive now used by Petitioners to the dominant estate that used the drive to connect to the public road system.
The problem the Petitioners are seeking to cure with the proposed median opening is curable without obligating the State to create an additional median opening or improving the access to Petitioners' property while decreasing access to other property owners whose property abuts State Road 80.
For example, the Petitioners could advance the construction of the westbound right turn lane relating to their Phase Two construction. This would provide additional pavement width to aid in the negotiation of a turn. It would also be at Petitioners' expense, as previously stipulated to with Lee County in its approval of the Development Order for the property.
A driver could also select a more appropriate turning area further east of the property on State Road 80 to reverse the direction of the low boy.
A circumferential route of I-75, SR 78, SR 31 and then west of SR 80, could be used by the low-boy driver to eliminate the left turn across opposing traffic.
The low boy driver could use the present median opening as designed. The tractor trailer could cross at the present opening, enter the right-of-way in front of the Wilson drive, and turn left on the one way frontage road which accesses the easement to Petitioners' property. Drivers should be cautioned to use an alternative route if other vehicles are stored in the right-of-way in front of the Wilson drive, waiting to turn left. This could prevent the safety problem previously raised by Walter D. Stephens, P.E.
If the Department permitted either of the proposed alternative median openings, federal funding on the entire project could be in jeopardy. This could require the state to pay $34.6 million for the improvement out of its own funds.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Sections 120.60 and 335.184(2), Florida Statutes.
Pursuant to Section 334.044, Florida Statutes, the Department has been empowered to establish, control, and prohibit points of ingress to, and egress from the State Highway System to ensure the safe, efficient, and effective maintenance and operation of such facilities.
In Section 335.181(2)(a) the Legislature determined:
Every owner of property which abuts a road on the State Highway System has a right to reasonable access to the State Highway System of this state but may not have the right of a particular means of access. The right of access to a road on the State Highway System may be restricted if reasonable access may be provided pursuant to local regulations to another public road which abuts the property.
In this case, the state has purchased an easement to create a one-way frontage road that allows eastbound traffic to enter the median opening approximately 200' east of the driveway used by Petitioners. This frontage road
will allow the Petitioners to have access to their property. Entry into the driveway at this location and a left hand turn down the frontage road, delivers a vehicle to Petitioners' access easement. The driveway currently known as the Wilson driveway is part of the public right-of-way in the area that connects to the frontage road As a matter of law, this is reasonable access under Section 335.181(2) (a), Florida Statutes.
The fact that Petitioner Stevens & Layton, Inc. uses a 70' low-boy tractor trailer in its pipeline business, which has been relocated to the commercial building complex developed by them, does not undermine the legal conclusion that reasonable access has been provided by the state. The Petitioners knew or should have known when the property was purchased that access from the eastbound traffic lanes to the property was granted via a one way frontage road that connected to their non-exclusive road access easement. It is clear on the site development plan that their own engineer was aware of the situation as well as the county personnel involved in reviewing and
approving the Development Order. It is also clear that the road access easement conveyed by the dominant estate contemplated a frontage road and a public right- of-way in the front portion of this driveway. Any assertions to the contrary are rejected by the Hearing Officer as they are self-imposed blindness to an obvious situation.
Due to the circuit court judge's written request that the Department treat the pending law suit as an application for a State Highway Connection Permit and the Hearing Officer's ruling that all proposed alternatives presented prior to hearing will also be treated as part of that application, the Department has exceeded its statutory obligation and its own policies regarding review of such matters. When the established agency criteria for the approval of State Highway Connection permits were applied to the two alternative median openings presented by Petitioners, the applicable criteria set forth in the Department's Policy No. 021 regarding median openings were not satisfied. Therefore, the application was denied.
The Petitioners have the burden of proving that their application for either alternative median opening should be granted. The evidence presented at hearing did not demonstrate that the Department abused its discretion when the Notice of Intent to Deny Road Connection Application was issued on July 6, 1989.
Based on the foregoing, it is RECOMMENDED:
That Petitioners' application to relocate the median opening or for a joint use median opening be denied.
DONE and ENTERED this 7th day of August, 1990, in Tallahassee, Florida.
VERONICA E. DONNELLY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-4196
Petitioners' proposed findings of fact are addressed as follows:
Rejected. See HO #4.
Accepted.
Accepted. See HO #10-#11.
Accepted. See HO #6.
Rejected. Irrelevant. See HO #7-#9.
Rejected. Irrelevant. See HO #4, #7-#9, and HO #12.
Rejected. Contrary to fact. The Petitioners were either acting under self- imposed blindness (see Conclusions of Law) or were trying to increase the value of their back parcel at public expense.
Rejected. The letter was not even from Petitioners. In addition, the county could have made an application to change the roadway traffic patterns under Section 335.20, Florida Statutes. Alternative routes for low boy trailers could have then been explained to the county by the Department.
Accepted except for the improper conclusion that an "impasse" has been reached. This is a mischaracterization of fact. See HO #17.
Accepted. See HO #18.
Accepted. See preliminary matters.
Rejected. Contrary to fact. The Petitioners could resolve any safety issues. See HO #28-#33.
Rejected. Contrary to fact. See HO #28-#33.
Rejected. Improper Conclusion of Law. See Section 335.187, Florida Statutes. The Petitioners are on notice that a permit must be obtained due to the significant change in the use, design or traffic flow of the connection and the state highway.
Rejected. Irrelevant.
Rejected. Irrelevant. There was no showing that Mr. Hunt could render an expert opinion that should be given greater weight than that of the professional engineer presented by the Department.
Rejected. Contrary to fact. See HO #34.
Respondent's proposed findings of fact are addressed as follows:
Rejected. These definitions are defined by law and rule as they relate to this case.
Accepted. See HO #17-#18.
Accepted. See preliminary matters.
Rejected. Irrelevant. Petitioners could have borne expense. 5. Rejected. Irrelevant.
Accepted.
Accepted. See HO #1.
Accepted.
Accepted.
Accepted.
Accepted. See HO #3.
Accepted. See HO #3.
Accepted.
Accepted.
Accepted.
Rejected. See pleadings as to Petitioners in this case.
Rejected. See HO #4 and HO #10. There was no showing of the parties interests in all businesses. It is not a significant material fact in these proceedings.
Accepted.
Rejected. Irrelevant.
Accepted. See HO #10-#11.
Accepted.
Accepted. See HO #6.
Rejected. Irrelevant. See HO #7-#9.
Rejected. Irrelevant. Stevens & Layton, Inc. had its own consulting engineer. See HO #7.
Rejected. Irrelevant. See HO #7.
Accepted. See HO #7.
Accepted. See HO #30-#33.
Rejected. Speculative.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted. See HO #24.
Accepted. See HO #26.
Rejected. This was not sufficiently proved at hearing. There was no evidence the Committee reviewed the proposals.
Rejected. There was no evidence the Federal Highway Administration has been approached regarding the change in the median opening.
Accepted.
Accepted.
Accepted. See HO #24.
Accepted.
Rejected. See #37 above.
Rejected. See #38 above.
Accepted.
Accepted.
Accepted. See HO #26.
Rejected. See #37 above
Rejected. See #38 above.
Accepted.
Rejected. Contrary to law. See Section 335.187(1), Florida Statutes.
Rejected. Contrary to evidence presented and law previously cited in #51 above.
Rejected. Irrelevant.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted. See HO #24.
COPIES FURNISHED:
Edward M. Chew, Esquire Department of Transportation
P.O. Box 1249 Bartow, FL 33830
J. Jeffrey Rice, Esquire
Goldberg, Goldstein & Buckley, P.A.
P.O. Box 2366
Fort Myers, FL 32902-2366
Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street
Tallahassee, FL 32399-0458
Thornton J. Williams, General Counsel
Department of Transportation
562 Haydon Burns Building Tallahassee, FL 32399-0458
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ROBERT WILENIUS and SARAH WILENIUS, WILLIAM M. STEVENS and MARY LOU STEVENS, and STEVENS & LAYTON, INC., a
Florida Corporation,
Petitioners, DOAH CASE NO. 89-4196 DOT CASE NO. 89-0469
vs.
FLORIDA DEPARTMENT OF TRANSPORTATION,
Respondent.
/
FINAL ORDER
Pursuant to notice, a hearing was held in this cause on May 21, 1990, in Fort Myers, Florida before Veronica E. Donnelly, a duly designated hearing officer of the Division of Administrative Hearings. This Order is entered by the Secretary of the Department of Transportation, pursuant to Section 120.59, Florida Statutes, following a review of the record as it exists and the Recommended Order entered in this cause by the hearing officer and exceptions filed thereto by counsel for Respondent. The parties were represented at hearing as follows:
For Petitioner: J. Jeffrey Rice, Esquire
Goldberg, Goldstein & Buckley, P.A. Post Office Box 2366
Fort Myers, Florida 32902-2366
For Respondent: Edward N. Chew, Esquire
Florida Department of Transportation Post Office Box 1249
Bartow, Florida 33830
The Petitioners in this matter are Robert and Sarah Wilenius, William H. and Mary Lou Stevens, and Stevens & Layton, Inc., a Florida Corporation (hereinafter Petitioners). Respondent is the Florida Department of Transportation (hereinafter Department).
The Department adopts the hearing officer's recommended order except as to certain expansions and clarifications as noted herein.
PROCEDURAL BACKGROUND AND STATEMENT OF THE ISSUES
In April 1989, Petitioners filed a letter with the Department seeking the placement of a median cut on State Road 80 which would allow large vehicles to enter Petitioners' easement for ingress and egress to its property from the eastbound lane of State Road 80. The Department filed an Amended Notice of Intent to Deny Road Connection application on July 6, 1989, and a request for a formal administrative hearing was filed by the Petitioners for a de novo hearing on the matter.
During the hearing, the Petitioners offered thirteen exhibits and presented four witnesses. All of the exhibits were admitted into evidence except for Petitioners' Exhibit #10, which was proffered into evidence. Petitioners' Composite Exhibit #9 was admitted for the limited purpose of demonstrating that the sheriff's department and the fire department have written to the Department regarding a median cut at the proposed location. The Department called two witnesses and filed four exhibits, which were admitted into evidence.
A transcript of the proceedings was filed with the Hearing.Officer on June 7, 1990. Proposed recommended orders were timely filed by the parties. Rulings on the proposed findings of fact are in the Appendix of the Recommended Order.
FINDINGS OF FACT
Background
State Road 80 is part of the State Highway System. The road runs in an east-west direction from Interstate 1-75 at Fort Myers in Lee County to U.S. Highway 27 in Hendry County.
The road improvement project currently under construction on State Road
80 involves the expansion of the road from two lanes to six lanes. A raised median separates the eastbound lanes from the westbound lanes. To provide access from either direction to homes and businesses that are adjacent to the road, turn lanes and median openings have been designed into the project. This is not a "limited access facility" as defined by Section 334.03(11), Florida Statutes Rather, it is a "controlled access facility" as defined by Section 334.03(6), Florida Statutes. Service roads restore access to properties that were accessed from both directions prior to the improvements.
Pursuant to routine agency practices, the median openings were set at the "60% phase" of the project design in June or July of 1986.
Petitioner Stevens & Layton, Inc. is a Florida corporation in which Petitioners Robert Wilenius and Harvey W. Stevens are officers and directors. In September 1987, Petitioner Stevens and Layton had drawings of a site plan completed for the development of a commercial building complex. The plans for the buildings involved real property located behind an existing business that fronts State Road 80. The existing business had a driveway that accessed State Road 80. The owner of the entire parcel of land (which included the existing
business and the site of the proposed building complex) agreed that the existing driveway could be used as an access drive to the complex.
The site plans were reviewed by the Lee County Department of Community Development Review. On October 15, 1987, Lee County rejected the proposed site plan. Right and left turn lanes onto the property had to be provided by the developer, Stevens & Layton, Inc., before the project would be considered.
On November 10, 1987, a meeting was held that included the project engineer, John Bosserman, Robert Wilenius of Stevens.& Layton, Inc., Patrick Hunt of Lee County Department of Community Development Review, and D. M. Heflin of the Florida Department of Transportation. During the meeting, Mr. Heflin confirmed that the proposed expansion of State Road 80 was of high priority in the area and should be let for bid in June, 1988. Based upon this representation, the County decided to waive the requirement that the developer provide turn lanes into the property during Phase I of the project. This construction phase involved the completion of an office building and mini- storage warehouse.
During his revisions of the site plan after October 15, 1987, the professional engineer hired for the commercial building project obtained a copy of the Department's plans for the improvement of State Road 80. Evidence submitted at hearing shows that these plans were reviewed by the engineer on or before November 17, 1987. The plans reviewed show where the raised medians and the median openings were to be located in the future on the state road.
The Florida Department of Transportation's road improvement plans for State Road 80 demonstrate that the parcel of land on which Petitioner's commercial building complex was to be located would not have direct access to State Road 80 from both directions. These plans also indicated that a median opening was not planned for complex property and that the nearest median opening (located east of the parcel's driveway access) was not designed to accommodate long commercial vehicles. When the service road from the Wilson driveway is constructed, Petitioner's property will be accessible from east bound lanes. This finding of fact modifies the Hearing Officer's Finding 8 to the extent that the Hearing Officer found the service road to currently be in existence as not being supported in the record by clear and convincing evidence. To the extent the Hearing Officer's Recommended Order found there to exist a service road along the disputed segment of State Road 80 at the time of hearing, the Department rejects such finding. (Tr. p. 202, 1. 5-8)
The Petitioners knew or should have known prior to their purchase of the real property involved in the commercial building complex that a median opening was not being provided by the Department for direct access into their property, which is behind the dominant estate which fronts the state road, both eastbound and westbound lanes of the improved State Road 80.
The Petitioners Robert Wilenius and Sarah Wilenius, with Harvey W. Stevens and Mary Lou Stevens, purchased the real property on which the commercial building complex developed by Petitioner Stevens and Layton, Inc. was to be located on January 8, 1988. This area of land was severed from the dominant estate that continues to include the business and the driveway that abuts State Road 80. In order for the Petitioners to have access to the property from the state road, the owner of the dominant estate granted the new owners of the back portion of the parcel a non- exclusive easement for roadway purposes, through the driveway and across the front of the parcel. The property, including easement, was purchased for less that $100,000.00 according to the documentary tax stamps on the deed.
After various revisions were made to the site plan, the development plans were approved for a Final Development Order from Lee County on January 12, 1988, with the following stipulation:
Frontage road agreement including sidewalk, to be submitted with phase one prior to C.O.
Right turn lanes to be constructed with phase two prior to C.O.
Based upon the site plan in evidence, it was anticipated in January 1988 that the future frontage road easement across the dominant parcel would connect with the paved access drive onto the Petitioners' property. Apparently, this frontage road easement would allow traffic from the eastbound lanes of State Road 80 to enter Petitioners' access drive from one of the median openings cast of Petitioners' property.
In August of 1988, Phase One of the commercial building complex was under construction. During this time period, Walter
D. Stephens, P.E., the Acting Director of the Lee County Department of Transportation and Engineering, Division of Transportation Planning and Permitting, examined the proposed median crossover locations on State Road 80. Mr. Stephens opined on August 10, 1988, that if the Petitioners commercial building complex were to have heavy construction vehicle (low-boy trailer truck) activity, these large vehicles would not be able to safely move from the first
median opening east of the property onto the proposed frontage road under the following conditions: If a low-boy trailer truck made a left turn movement from the Wilson drive onto the frontage road to move west towards Petitioners' access drive, the back of the truck would still be on State Road 80 if there were other vehicles in the Wilson drive waiting in front of the truck to make the same turn. Patrick Hunt, the Development Review Supervisor for Lee County Department of Community Development, was promptly advised of Mr. Stephens' opinion.
A revised print of the site plan for the commercial building complex received the professional seal of the engineer on the project on November 14, 1988.
Lee County Department of Development Review approved the revised site plan on November 15, 1988.
It is unknown to the Hearing Officer exactly when the certificate of occupancy for Phase One of the development was issued. However, based upon the verified complaint filed by Petitioners in circuit court, the certificate was issued before the complaint was filed because Stevens & Layton was operating its contracting business from this location.
If Stevens & Layton proposed to go forward with Phase Two of their development on the property, they were obligated to construct right turn lanes prior to receiving a certificate of occupancy for the second stage of development.
The circuit court judge denied the temporary preliminary injunction, but encouraged the Department and the Petitioner to negotiate for a median relocation. The judge will hear the merits of the pending suit after the Petitioners have exhausted administrative remedies for a median opening providing direct access from eastbound and westbound lanes on State Road 80 to their property.
The Petitioners are seeking to have the Department provide them with a median opening in front of the road access easement to their property in order to allow the 70' low-boy tractor trailer used in Stevens & Layton Inc.'s pipeline business to enter from the eastbound lane of State Road 80 without having to make a U-turn from the median opening east of the property.
The Petitioners maintain that a serious safety hazard could result to the tractor trailer or other traffic, if the current road design is allowed to remain in the area due to the tractor trailer's use of the median opening just east of Petitioner's drive.
Alternative Requests for Median Opening
One request for a median opening submitted to the Department by Petitioners requested a median opening that gives them a turn lane into their property from both the eastbound and westbound lanes of traffic from State Road 80.
The second alternative suggested by Petitioners is to place the median opening planned for the entry onto the Wilson property between the two existing driveways, still allowing those drives to remain in place. The proposed additional center driveway could carry two-way traffic and would have a sufficient radius for large trucks planning to turn left onto Petitioners' access easement from the dominant estate.
First Alternative
The first alternative suggested by the Petitioners would be approximately 240' west of the planned median opening that allows traffic to enter the drive in front of the Wilson property.
In other locales with similar development and a similar roadway design, the Department does not allow median openings within 660' of other median openings. Speed is one of the prime considerations. Longer acceleration and deceleration lanes are needed on roads with higher speeds such as this one, to allow drivers reaction time to use the openings. A short lane, such as the one proposed, would create a safety hazard and would not solve the problem the Petitioners are seeking to solve: the difficulty a driver would have with the turn of the long low-boy trailer from the eastbound lane into their access easement back to their property.
There is a conforming road connection which allows Petitioners a reasonable means of connection to the public road system.
Second Alternative
The second alternative failed to detail information for all properties using the proposed median opening. In addition, there was no concurrence by all affected property owners on the joint driveway usage. The plan greatly enhances the value of Petitioners' property, which does not even front the existing road. The plan also significantly decreases the value of the adjoining Wilson property, the dominant estate to Petitioners' property, and the right-of- way previously purchased by the Department. The right-of-way was purchased to provide the dominant estate a reasonable means of connection to the public roads system from the driveway also used by Petitioner.
The Petitioners' purchase and use of this back portion of the parcel was not contemplated by the road designers at the time the road improvement design with median placements went into effect.
Lee County requires the property owners along this section of State Road 80 to construct a frontage road along their property a condition for granting the property owner a development order. Lee County requires the frontage or service road be conveyed to the County. To the extent the Hearing Officer's Recommended Order found the Department of Transportation had or would acquire right-of-way for construction of frontage road, the Department departs from such finding as being unsupported in the record by clear and convincing evidence.
The problem the Petitioners are seeking to cure with the proposed median opening is curable without obligating the State to create an additional median opening or improving the access to Petitioners' property while decreasing access to other property owners whose property abuts State Road 80.
For example, the Petitioners could advance the construction of the westbound right turn lane relating to their Phase Two construction. This would provide additional pavement width to aid in the negotiation of a turn. It would also be at Petitioners' expense, as previously stipulated to with Lee County in its approval of the Development Order for the property.
A driver could also select a more appropriate turning area further east of the property on State Road 80 to reverse the direction of the low boy.
A circumferential route of 1-75, State Road 78, State Road 31 and then west of State Road 80, could be used by the low- boy driver to eliminate the left turn across opposing traffic.
After the service road adjacent to the Petitioners' and the Wilsons' property is constructed, a low boy driver could use the present median opening as designed. The tractor trailer could cross at the present opening, enter the right-of-way in front of the Wilson drive, and turn left on the one way frontage road which accesses the easement to Petitioners' property. Drivers should be cautioned to use an alternative route if other vehicles are stored in the right- of-way in front of the Wilson drive, waiting to turn left. This could prevent the safety problem previously raised by Walter D. Stephens, P.E. To the extent the Hearing Officer's finding implied the current existence of the frontage road, the Department rejects such finding as unsupported by the record. (Tr. p. 202, 1. 5-8)
If the Department permitted either of the proposed alternative median openings, federal funding on the entire project could be in jeopardy. This could require the state to pay $34.6 million for the improvement out of its own funds.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Sections 120.60 and 335.184(2), Florida Statutes.
Pursuant to Section 334.044, Florida Statutes, the Department has been empowered to establish, control, and prohibit points of ingress to, and egress from the State Highway System to ensure the safe, efficient, and effective maintenance and operation of such facilities.
In Section 335.181(2)(a) the Legislature determined:
Every owner of property which abuts a road on the State Highway system has a right to reasonable access to the State Highway system of this state but may not have the right of a particular means of access. The right of access to a road on the State Highway System may be restricted if reasonable access may be provided pursuant to local regulations to another public road which abuts the property.
The proposed frontage road upon which Lee County has conditioned approval of a development order for petitioner will allow east bound traffic to enter the median opening approximately 200' east of the driveway used by Petitioners. This frontage road will allow Petitioners two-way low-boy truck
access to their property. Entry into the driveway at this location and a left- hand turn down the frontage road delivers a vehicle to Petitioners' access easement. Petitioners' driveway currently provides, Petitioner with reasonable access to its property. Once the adjacent Wilson property is developed and the frontage road is constructed pursuant to Lee County's development order, the Wilson driveway will be part of the public right-of-way in the area that connects to the frontage road and will provide Petitioner with more convenient access to the property. As a matter of law, this is reasonable access under Section 335.181(2)(a), Florida Statutes. The Hearing Officer's legal conclusion on this matter is clarified to reflect that the service road was not in existence at the time of hearing and also to reflect that construction of the frontage road is required by Lee County's development order and to further reflect that the frontage road will be conveyed as a public right- of-way to the county as frontage properties are developed.
The fact that Petitioner Stevens & Layton, Inc. uses a 70' low boy tractor trailer in its pipeline business, which has been relocated to the commercial building complex developed by them, does not undermine the legal conclusion that reasonable access has been provided by the state. The Petitioners knew or should have known when the property was purchased that access from the eastbound traffic lanes to the property was granted via a one way frontage road that connected to their non-exclusive road access easement. It is clear on the site development plan that their own engineer was aware of the situation as well as the county personnel involved in reviewing and
approving the Development Order. It is also clear that the road access easement conveyed by the dominant estate contemplated a frontage road and a public right- of-way in the front portion of this driveway. Any assertions to the contrary are rejected by the Hearing Officer as they are self-imposed blindness to an obvious situation.
Due to the circuit court judge's written request that the Department treat the pending law suit as an application for a State Highway Connection Permit and the Hearing Officer's ruling that all proposed alternatives presented prior to hearing will also be treated as part of that application, the Department has exceeded its statutory obligation and its own policies regarding review of such matters. When the established agency criteria for the approval of State Highway Connection permits were applied to the two alternative median openings presented by Petitioners, the applicable criteria set forth in the Department's Policy No. 021 regarding median openings were not satisfied. Therefore, the application was denied.
The Petitioners have the burden of proving that their application for either alternative median opening should be granted. The evidence presented at hearing did not demonstrate that the Department abused its discretion when the Notice of Intent to Deny Road Connection Application was issued on July 6, 1989.
ORDER
Based on the foregoing, it is ORDERED that:
Petitioners' application to relocate the median opening or for a joint use median opening be denied.
DONE AND ORDERED this 14 day of November, 1990.
BEN G. WATTS, P. E.
Secretary
Florida Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399
RIGHT TO APPEAL
This Order constitutes final agency action and may be appealed by Petitioner pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate district court of appeal, accompanied by the appropriate filing fee, and with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, M.S. 58, Tallahassee, Florida 32399-0458, within thirty (30) days of rendition of this Order.
Copies furnished to:
Veronica E. Donnelly, Hearing Officer Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
J. Jeffrey Rice, Esquire
Goldberg, Goldstein & Buckley, P.A. Post Office Box 2366
Fort Myers, Florida 32902-2366
Edward M. Chew, Esquire Department of Transportation Post Office Box 1249
Bartow, Florida 33830
| Issue Date | Proceedings |
|---|---|
| Aug. 07, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 1990 | Agency Final Order | |
| Aug. 07, 1990 | Recommended Order | DOT not required to change plans foir median location as long as landowner who purchased land after median was located continued to have reasonable access. |
DEPARTMENT OF TRANSPORTATION vs ALONZO T. BAGGETT, 89-004196 (1989)
DISCOUNT AUTO PARTS RETAIL STORE NO. 228 vs DEPARTMENT OF TRANSPORTATION, 89-004196 (1989)
DEPARTMENT OF TRANSPORTATION vs JOHN J. CURRAN, 89-004196 (1989)
KYRIAKOU REVOCABLE TRUST AGREEMENT vs DEPARTMENT OF TRANSPORTATION, 89-004196 (1989)
