Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit. RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985.
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.
Recommendation 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 =================================================================
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. |
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and Dye copies have been ished to the persons listed below in the manner described, on this day o: 2010. \ Paula Ford . Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U. S. Mail: Bram D.E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Fred A. Morrison, Esq. McLin, Burnsed, Morrison, Johnson, Newman and Roy, P.A. P.O. Box 491357 Leesburg, Florida 34749 Hand Delivery: L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 FINAL ORDER NO. DCA10-GM-112 Karen A. Brodeen, Esq. Linda L. Shelley, Esq. Fowler White Boggs Banker, P.A. P.O. Box 11240 Tallahassee, Florida 32302 Gary P. Sams, Esq. David L. Powell, Esq. Douglas M. Smith, Esq. Hopping, Green & Sams, P.A. P.O. Box 6526 Tallahassee, Florida 32314
The Issue Whether Relocation Assistance Appeal of Petitioner should be granted. Petitioner was not represented by legal counsel or other representative at the hearing. After an explanation of her rights in administrative hearings conducted under the provisions of Chapter 120, Florida Statutes, Petitioner stated that she wished to proceed in her own behalf.
Findings Of Fact Petitioner moved into an apartment located at 1013 West Broward Boulevard, Fort Lauderdale, Florida on June 9, 1977. (Testimony of Petitioner, supplemented by Exhibit 2) On August 3, 1977, Petitioner acknowledged receipt of a letter from Respondent which notified her that Respondent was in the process of acquiring right-of-way for a state road project located where she lived and that negotiations for the purchase of the property had begun on June 23, 1977. The letter enclosed an informational brochure entitled "YOUR RELOCATION" and expressed the desire of Respondent to assist in Petitioner's relocation necessitated by the property acquisition. (Exhibit 1) In late November or early December, 1977, Petitioner vacated her apartment upon the request of the landlord for non-payment of the rent. (Testimony of Petitioner, supplemented by Exhibit 2) Respondent purchased the property where Petitioner had resided from the West Broward Land Corporation on February 8, 1978. The purchase was accomplished pursuant to the Federal Highway Aid Program (PL 91-646) and involved the widening of Broward Boulevard (SR 842). Guidelines under the federally funded program are implemented by the Federal Aid Highway Program Manual and by Chapter 14-14.05, F.A.C., which incorporates by reference Respondent's Right-of-way Bureau Operating Procedures. These procedures include eligibility criteria for receipt of monetary payments by individuals who have been displaced from real property as a result of its acquisition by the state. (Testimony of Moon, Exhibit 3) On February 15, 1978, Petitioner was present at the residence of another tenant of the apartment building at the time Respondent's right-of-way agent was explaining relocation benefits to that individual. Petitioner asked the agent if she could return to her former apartment and resume occupancy, but he explained that he had no authority to grant such permission. Thereafter, Petitioner moved back into the apartment. She testified at the hearing that one of Respondent's employees named Bill Barnette had told her she could occupy the premises. This alleged authorization however, took place at the time Petitioner was given a check for $320 for moving expenses by Barnette sometime in March, 1978. (Testimony of Way, Petitioner, Crawford, Johnson, supplemented by Exhibits 2, 5) Thereafter, Petitioner made application with Respondent for rent supplement payments, but by letter of October 2, 1978, Respondent denied any such payment on the ground that Petitioner was not living on Broward Boulevard when the state obtained legal possession of the property. (Testimony of Moon, Case File)
Recommendation That Petitioner's appeal be denied. DONE and ENTERED this 13th day of March, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Sallie Mae Ray 429 1/2 North West 7th Terrace Ft. Lauderdale, Florida 33311 Also mailed to Ms. Ray at: Apartment 14 North West 10th Avenue and 7th Street Fort Lauderdale, Florida
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On December 18, 2007, Respondent City of Bunnell adopted an amendment to its comprehensive plan by Ordinance No. 2006-21 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not “in compliance.” The Department then instituted this administrative FINAL ORDER No. DCA09-GM-290 proceeding against the City pursuant to Section 163.3184(10), Florida Statutes. On August 4, 2009, the City rescinded the Amendment by Ordinance No. 2009-23. By virtue of this rescission, the instant controversy has been rendered moot and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-290 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this ND day of keegush , 2009. Paula Ford Agency Clerk The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail Sidney M. Nowell, Esquire Sidney M. Nowell, P.A. Post Office Box 819 Bunnell, Florida 32110-0819 Clay Henderson, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801-3461 * By Hand Delivery Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100
The Issue The issue for determination in this proceeding is whether proposed changes to a previously adopted Development of Regional Impact Development Order should be approved. The City Council for Boca Raton, Florida voted on July 24, 1990, not to approve two resolutions that would have amended a Development of Regional Impact Order approved by the City Council on January 12, 1988.1 On September 14, 1990, Petitioners submitted an Amended Notice of Appeal and Petition for Administrative Hearing. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on November 21, 1990, and assigned to Hearing Officer Stuart Lerner on November 28, 1991. A formal hearing was scheduled for May 22, 1991. The matter was transferred to the undersigned on May 20, 1991. The parties waived a formal hearing and stipulated to substantially all of the evidence of record. The parties disagreed on the applicable burden of proof, and Respondent made evidentiary objections to three documents in the stipulated record. The parties agreed that issues regarding the burden of proof and evidentiary objections would be disposed of in this Recommended Order. The parties further agreed that rulings made in this Recommended Order regarding the burden of proof and evidentiary objections would not affect the quantity or quality of proof that would have been presented by either party if a formal hearing had been conducted. The stipulated record consists of 74 exhibits. The stipulated record was amended to include Exhibits 73 and 74 pursuant to the Order entered on July 2, 1991, granting the Joint Motion To Modify Order Of The 28th Day Of May, 1991, And Supplement The Record. /2 All exhibits were admitted in evidence pursuant to the stipulation of the parties except for Exhibits 70-72. /3 Ruling on the admissibility of Exhibits 70-72 was reserved for disposition in this Recommended Order. Since no formal hearing was conducted, there was no transcript. Proposed findings of facts and conclusions of law were timely filed by the parties on June 20, 1991. The parties' proposed findings of facts are addressed in the Appendix to this Recommended Order.
Findings Of Fact Background 1. A Development of Regional Impact ("DRI") for a proposed project known as the Knight Commerce Centre was approved by the City of Boca Raton, Florida (the "City") on January 12, 1988, when the City Council approved Resolution 14- The proposed project consists of professional offices, banks, financial institutions, and a hotel/motel to be constructed on approximately 70 contiguous acres within the City. The site of the proposed project is not in an area of critical state concern. The site of the proposed project was originally zoned M-3 under the local zoning ordinance. An M-3 designation permitted land use contemplated in the proposed project only upon conditional approval. Petitioners received conditional approval from the City Council on January 13, 1987, of the Master Plan and land use contemplated in the proposed project. Conditional approval of the uses and Master Plan was based upon Ordinance No. 3377 which is now codified as Ordinance Nos. 25-66.10 and 25-80. Ordinance No. 3377 permitted conditional approval of offices, financial institutions, and hotels in the district zoned M-3. Subsequent to conditional approval of the uses and Master Plan on January 13, 1987, but prior to the approval of the Development of Regional Impact Development Order on January 12, Resolution 3-87 was approved by the City Council on January 13, 1987. It granted conditional use and Master Plan approval of the proposed project "subject to certain conditions set forth is such resolution and to all requirements set forth in the final DRI Development Order." The Development Order, in relevant part, contained the following conditions: Failure to initiate construction and physical development within three years from the effective date of the Development Order, or failure to maintain reasonable progress toward completion of the development after having initiated construction in a timely manner, shall constitute a substantial deviation and the development shall be subject to further review pursuant to Section 380.06, Florida Statutes ["Condition 2"]; No additional building permits shall be issued after December 31, 1993, unless a traffic study has been conducted by the developer, submitted to and approved by the City of Boca Raton, Palm Beach County, and Treasure Coast Regional Planning Council that demonstrates that the regional roadway network can accommodate a specified amount of additional Knight Commerce Centre generated traffic and growth in background traffic beyond 1993 and still be maintained at Level of Service C during average annual conditions and Level of Service D during the peak season ["Condition 38"]; Compliance dates for commencing development and complying with conditions of approval and phasing requirements are listed in the conditions of approval. The Development Order shall terminate five years after the effective date of the Development Order [January 12, 1993; "Section 5" of the Development Order]; and The City of Boca Raton specifically agrees that the Knight Commerce Center Development of Regional Impact shall not be subject to downzoning, unit density reduction, or intensity reduction for a period of five years from the effective date of the Development Order, unless the City of Boca Raton can demonstrate that substantial changes in the conditions underlying the approval of the Development Order have occurred or that the Development Order was based on substantially inaccurate information provided by the developer, or that the change is clearly established by the City of Boca Raton to be essential to the public health, safety, or welfare ["Section 6" of the Development Order]. The Development Order was approved by the City Council pursuant to Resolution 14-88. Resolution 14-88 approved the Development Order and was adopted by City Council on January 12, 1988. Conditions 24-36 of the Development Order condition construction and phasing of the proposed project on roadway improvements that include construction of the 1-95/Congress Avenue interchange and the six-laning of: Congress Avenue between Linton Boulevard and Yamato Road; Linton Boulevard between Congress Avenue and Military Trail; and Yamato Road between Military Trail and IBM Way. Condition 24 of the Development Order generally prohibits the issuance of any building permits for construction of the proposed project until the Florida Department of Transportation indicates in writing its ". . intent to include within the first year of its five-year work program and to construct the 1-95/Congress Avenue interchange, park and ride facility, and [high occupancy vehicle] extension to Linton Boulevard . . . ["Condition 26"]." Conditions 29-36 generally prohibit the issuance of additional building permits for construction in excess of prescribed amounts of square footage area prior to the letting of contracts for construction of specified roadway improvements. The Florida Department of Transportation did not include the 1- 95/Congress Avenue interchange and park and ride facility in the first year of the five year work program. Petitioners sought modifications to the time frames in the Development Order for the purpose of complying with Conditions 24-38. In March, 1990, Petitioners filed a petition with the City and the Florida Department of Community Affairs. The petition, in relevant part, sought the following amendments to the Development Order: an extension of two years for commencement of the proposed project from January 12, 1991, until January 12, 1993; an extension of two years for traffic studies required in Condition 38 from December 31, 1993, until December 31, 1995; and an extension of four years for the termination date of the Development Order from January 12, 1993, to January 12, 1997. The proposed amendments were reviewed and analyzed by the appropriate state and local agencies. Both the Florida Department of Community Affairs and the Regional Planning Council determined that the extension of four years for the termination of the Development Order did not create a substantial deviation within the meaning of Section 380.06, Florida Statutes. An extension of the date of buildout, or any phase thereof, of three years or more, but less than five years is statutorily presumed not to create a substantial deviation. /7 The Florida Department of Community Affairs determined that the extension of time for traffic studies created a presumption of substantial deviation pursuant to Section 380.06(19) (e) (3), Florida Statutes. The Regional Planning Council determined that both the extension of time for traffic studies and the extension of time for commencement of the proposed project created a presumption of substantial deviation. The Regional Planning Council made its determination with respect to the extension of time for commencement of the proposed project based upon Section 380.06(19) (a), Florida Statutes. Petitioners rebutted the presumptions of substantial deviation to the satisfaction of the staff of the state and local agencies. Petitioners submitted a traffic analysis, updated traffic information, and additional conditions to the proposed amendments. The traffic analysis and information and additional conditions resolved the concerns of the Regional Planning Council, the Florida Department of Community Affairs, and the City Engineering Department. The City Planning and Zoning Board (the "Zoning Board") conducted public hearings and, on July 19, 1990, recommended approval of the Petitioners' petition for amendments to the Development Order. The Zoning Board found that the proposed amendments do not constitute a substantial deviation and that the proposed amendments are consistent with the Comprehensive Plan. The Zoning Board approved the proposed amendments with additional conditions by a vote of 5-0. The Regional Planning Council notified the City on July 19, 1990, that issues arising from the proposed amendments had been resolved. The Regional Planning Council found that additional traffic studies demonstrated that the regional roadway network could continue to operate at the prescribed level of service and that ". . . the time extensions to the commencement and buildout dates do not create the likelihood of additional new and previously unreviewed regional impacts pursuant to subsection 380.06(19) (a), F.S." The Florida Department of Community Affairs notified the City on July 23, 1990, that ". . . the proposed time extensions to the commencement, buildout and traffic study do not create the likelihood of additional adverse impacts to regionally significant transportation facilities . . . ." The Department found that once the proposed project was built out the roadway network would continue to operate at the level of service sought by the City. The proposed amendments and additional conditions were embodied in Resolution 143-90 and submitted to the City Council. The City Council conducted a public hearing and considered Resolution 143-90 on July 24, 1990. The record considered by the City Council included the recommendations for approval by the Regional Planning Council, Florida Department of Community Affairs, the Zoning Board, and the City Staff. The City Council called no witnesses and introduced no additional facts to rebut the recommendations for approval in the record. The only witnesses called by the City at the public hearing on July 24, 1990, were the City Engineer and City Planner. The City Planner presented the staff opinion which was: In summary, the City staff, the Treasure Coast Regional Planning Council staff, the Department of Community Affairs staff and the Planning and Zoning Board would recommend approval of the proposed modifications for the Knight Commerce Center DRI development order with proposed conditions. The Assistant City Attorney did prepare an amendment to the resolution of approval before you which incorporates those proposed amendments. The City Council voted 3-2 on July 24, 1990, to deny Resolution 143- The City Council did not explain the reasons for denying the proposed changes or delineate the criteria which would have made the proposed changes acceptable. The City Council did not make a determination that the proposed amendments either constituted a substantial deviation or failed to satisfy the criteria in Sections 380.06(12) and (14), Florida Statutes /8 De Novo Findings The proposed changes to the Development Order, including the additional conditions, do not constitute substantial deviations. The additional conditions to the proposed changes require additional roadway improvements including traffic lanes at designated intersections and a flyover to be built at Congress Avenue and Yamato Road. The proposed extension of the commencement date by two years is not a substantial deviation pursuant to Section 380.06(19) (e)2, Florida Statutes. The proposed extension of the date of buildout by four years is presumed under Section 380.06(19) (c) not to create a substantial deviation. No persuasive evidence was presented in this proceeding to rebut that statutory presumption. The statutory presumption in Section 380.06(19) (e) (3) that the proposed extension of the traffic study creates a substantial deviation was rebutted by competent and substantial evidence in the form of an updated traffic study, background information, and additional roadway improvements. No persuasive evidence was presented in this proceeding to support a finding that Petitioner did not rebut the statutory presumption regarding the traffic studies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order approving the proposed changes with additional conditions. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of September, 1991. DANIEL MANRY 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 5th day of September, 1990.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Dismissing Case and Relinquishing Jurisdiction and Petitioner’s Notice of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this ay day of August, 2013, in Tallahassee, Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services Filed August 29, 2013 2:07 PM Division of Administrative Hearings this “ve of —_ 2013 Yea _ f fekses- ee ‘ficens NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Jimmie Murphy, Manager Jimmie Shane Murphy, LLC 4601 Saufley Field Road Pensacola, Florida 32523 Damaris E. Reynolds Assistant General Counsel Department of Highway Safety And Motor Vehicles 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Diane Cleavinger Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 i)
Findings Of Fact James C. Mixon is a Career Service Employee with appeal rights who was suspended by his employing agency for one day and filed a timely appeal to the Career Service Commission of that suspension. Subsequent to the appeal being filed with the Career Service Commission, this matter was referred to the Division of Administrative Hearings. A date and time for hearing was determined and notice was given in accordance with the applicable rules and statutes. Mr. Mixon did not appear at the formal hearing and was not represented by Counsel. Mixon was a Highway Technician I assigned the duty of driving a dump truck. Mixon had been advised of his duties and responsibilities in operating said truck to include instructions regarding the safe operation of the vehicle. On August 20, 1975, Mixon was hauling fill to a construction site which was off the traveled way of the State road. Mixon had pulled to the right side of the road just off the traveled way and was preparing to make a 90 degree turn to the left back on to the traveled way in order to back the dump truck up to the fill site. A flagman was on duty, standing in the middle of the road. This flagman signaled Mixon to proceed with his turn back on to the highway and Mixon apparently did so without checking to his left rear to determine if the traffic were in fact clear because, although there were no obstructions to his vision, Mixon turned on to the traveled way where he was struck by an oncoming motorist. It was Mixon's responsibility under the Department of Transportation's safety procedures to determine whether conditions permitted his pulling back on to the highway safely even though a flagman was present. In pulling back on to the highway in such a manner that he was struck by another vehicle, Mixon violated the existing Agency safe driving instructions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the disciplinary action of the Agency be sustained. DONE and ORDERED this 21st day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. James C. Mixon 1223 Overdale Street Orlando, Florida 32807 Mrs. Dorothy Roberts Appeal Coordinator Division of Personnel Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether Council Properties (Petitioner) has demonstrated that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact The Property The property at issue in this proceeding (the property) is located at South Monroe Street and Orange Avenue in the City of Tallahassee. The property has been owned by the Council family since about 1904. Petitioner Council Properties is made up of family members who inherited the property in the 1950s. The entire Council tract has been zoned for general commercial development (C-2) since Petitioner acquired title to the property. Development Activity Between 1985 and 1990, two parcels originally contained within the tract inherited by Petitioner were sold for the development of two separate fast food restaurants. Both restaurants have been constructed and are occupied. The construction of the two fast food restaurants are the only developments that have taken place on the overall Council site. Petitioner's Development Plans Petitioner had preliminary plans prepared for developing a retail shopping center on the property in 1983. In pursuing the 1983 preliminary plans, Petitioner encountered difficulties with the City's perception of problems with the property based upon, among other things, the 100 year flood plain and sanitary sewer construction. In 1985, permitting was secured for the construction of a McDonald's restaurant on a portion of the property. In order to secure permitting for the construction of McDonald's, Petitioner designed a master sewer plan. Petitioner had the sewer plan designed to facilitate the development of the entire Council tract. In 1988, Petitioner engaged Page and Associates, Inc. (consulting engineers) to design a site plan for a retail shopping center on the property. This site plan was completed in 1989 and provided for a retail shopping center of about 130,000 gross square feet as well as stormwater management areas, and parking. The Pre-Development Conference In January 1990, Petitioner hired Broward Davis and Associates (consulting engineers) to assist in obtaining necessary approvals and permits in order to develop the retail shopping center on the property. Kathy Shirah, a representative of Broward Davis and Associates, indicated that she believed there were potential problems with the development as proposed regarding environmental constraints associated with the 100-year flood plain, severe grades on the property and the forestation of the proposed development site. As a result of Ms. Shirah's concern, a pre-development conference was scheduled attended by Ms. Shirah, the Petitioner's agent, Don Wesolowski, the Leon County-Tallahassee Planning Department's Chief of Environmental Permitting, Helge Swanson and Mr. Swanson's assistant, Karen Kebart. The pre-development conference occurred on January 25, 1990 (prior to the adoption of the 2010 Comprehensive Plan by the City). At the pre-development conference Mr. Swanson expressed that he would recommend against approval of permitting for the development of the shopping center on the site as planned. Mr. Swanson's objections concerned elevation (below flood plain), severe grades and native forestations on the property. Mitigation and alternative plans were discussed. Mr. Swanson indicated he would be inclined to view alternative plans for development more positively, but the alternative discussed was not acceptable to the Petitioner due to their concerns regarding market feasibility. Based upon Mr. Swanson's comments at the pre-development conference, Ms. Shirah recommended against the pursuit of permitting for the shopping center as planned by the Petitioner. Based upon the tone and substance of the pre-development conference and Ms. Shirah's recommendation, Petitioner made a business decision not to actively pursue the shopping center development plan. Petitioner's decision was based upon the belief that the expense involved in attempting to obtain permits over the objection of City staff was not justified based upon their assessment of the likelihood of success. After the pre-development conference, Mr. Wesolowski made several contacts with Mr. Swanson and/or Ms. Kebart attempting to induce Mr. Swanson to put his negative feelings toward the planned development in writing. These efforts were unsuccessful. Mr. Wesolowski also attempted to arrange a tour of the site with Mr. Swanson's assistant in an attempt to convince City staff of the merits of the proposed development. This site visit was accomplished in April 1990, but Mr. Wesolowski was unable to persuade the City staff to indicate support for the proposal. Subsequent to the pre-development conference, Petitioner, on the advice of Martin Page (consulting engineer), decided to pursue the development of an out parcel that was ultimately sold to Taco Bell and is now developed. The specific parcel (the Taco Bell site) was selected by Petitioner because the parcel is flat and not forrested, thus the environmental problems raised by City staff regarding the overall tract were not apparent on this portion of the property. The proposed shopping center plan was never submitted to local government for review and approval. The 2010 Comprehensive Plan was adopted by the City and submitted to the Florida Department of Community Affairs in February 1990 and was in effect in June 1990. The Testimony of Petitioner's Expert Witness At the March 20, 1992 final hearing, Petitioner presented the expert testimony of consulting engineer Martin Page. Mr. Page testified that, due to changes in sewer systems and drainage patterns in the area of the property, substantially less portions of the property were within the 100-year flood plain at the time of the pre-development conference than the City staff claimed. Mr. Page further testified that, in his opinion, the shopping center could have been permitted as planned by Petitioner, according to standards existing prior to the adoption of the 2010 Comprehensive Plan. Mr. Page holds this opinion notwithstanding allegations that the Property was flood prone or the existing grades on the property were too severe to permit the development Petitioner proposed. Mr. Page's opinions regarding the grades, elevations and flood prone nature of the property at issue are accepted. Mr. Page does not recall whether his opinions regarding the flood prone aspects of the site or the elevations on the property were ever discussed with the City staff. Based upon Mr. Page's testimony, Petitioner has established that there is an apparent difference of opinion between Mr. Page and City staff regarding environmental constraints effecting the development of the property. Petitioner's Claimed Expenses On the Application for Vested Rights Determination, filed with the City on or about November 13, 1990, Petitioner claims expenses in excess of $60,000.00 associated with planning, permitting and site preparation towards completion of development of the property. Since owning the property, Petitioner has paid property taxes estimated at $20,000 to $25,000 per year. Petitioner has failed to prove that the claimed expenses were incurred as a result of an act or omission of the City upon which Petitioner relied to its detriment. Petitioner's Change in Position Petitioner's decision not to pursue its shopping center development plans prior to the City's adoption of the 2010 Comprehensive Plan was a business decision made after consideration of the recommendation of consulting engineers hired by Petitioner. Petitioner has not proved that its failure to submit its shopping center development plan for review or to apply for permits in furtherance of the plan was attributable to any act or omission on the part of the City.
