Findings Of Fact The Petitioner owned property including structures used for his dwelling and for his business which was located within the right-of-way of an interstate highway being constructed by the Respondent, Department of Transportation. The Petitioner and the Department negotiated with respect to the amount of compensation that Petitioner was entitled to receive. The Department located a residential dwelling which it contended was comparable to Petitioner's. Petitioner accepted the dwelling located by the Department as comparable for the purpose of determining the amount of compensation that Petitioner was entitled to receive. Petitioner elected, however, to construct a new dwelling on other property that he owned. Petitioner was compensated as if he had purchased the comparable dwelling and was compensated an additional $829 for "incidental expenses" beyond the replacement value as established by the comparable dwelling. Petitioner contends that he is entitled to be compensated for the cost of a "origination fee" which resulted from Petitioner's having to arrange financing. Although improperly labeled, it appears that Petitioner did receive adequate compensation for the loan origination fee. Petitioner received a check from the Department for a "replacement housing payment" which included the origination fee which Petitioner contends he was entitled to receive. While the replacement housing payment was not broken up so as to reflect these fees, it was calculated to include them. Petitioner contends that he is entitled to receive incidental expenses beyond those that he has already received in the amount of $2,068.23. Petitioner has received a payment for incidental expenses in the amount of $829, which includes expenses for a survey, sketch and description, loan application fee, title insurance, attorney's fees, and recording fees. Petitioner actually incurred incidental expenses beyond those for which he was compensated. These additional fees resulted, however, from the fact that Petitioner elected to construct a new residence rather than to accept the comparable residence located by the Department. Because Petitioner was constructing a new residence, it was necessary for him to incur some expenses which would not have been incurred had he accepted the comparable dwelling located by the Department. These expenses included costs of obtaining a rezoning of his property, costs of various construction permits, the cost of obtaining a construction loan, and the cost of a builder's risk insurance policy. While the Petitioner actually incurred these costs, they were costs that he would not have incurred if he had elected to accept the comparable dwelling located by the Department. Petitioner did accept the comparable dwelling for the purpose of setting the amount of benefits that he was entitled to receive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Transportation denying the application of the Petitioner, John D. Lawrence, for additional relocation assistance benefits. RECOMMENDED this 2nd day of August, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of August, 1982. COPIES FURNISHED: Mr. John D. Lawrence c/o Manatee Tropical Foliage Post Office Box 206 Parrish, Florida 33564 Charles G. Gardner Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Paul N. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and Respondent shall abide by the terms of the Settlement Agreement entered into in this matter. Filed September 11, 2014 2:09 PM Division of Administrative Hearings DONE AND ORDERED this \\ day of September, 2014, in Tallahassee, Leon Cobur 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 County, Florida. Filed with the Clerk of the Division of Motorist Services this } { day of September, 2014. NOTICE OF APPEALRIGHTS 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. JB/jdc Copies furnished: Richard A. Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail Sarasota, Florida 34239 filsonlawfirm@gmail.com Damaris E. Reynolds, Esquire Department of Highway Safety And Motor Vehicles 2900 Apalachee Parkway, Room A430, MS61 Tallahassee, Florida 32399 damarisreynolds@flhsmv.gov William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 6 fees. eat
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department of Transportation take no action against the subject sign. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1979. COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446
Findings Of Fact The attorney for the Respondent thereafter filed a statement in part as follows: "It is my understanding that the issues to be presented for decision are whether the sign in question violates the set- back and permit requirements under state and federal law. After a thorough review of the factual background, it appears that the respondent has no alternative but to, and does hereby admit the allegations, end consent that the sign was erected in vio- lation of the setback and permit require- ments It is therefore obvious that: the sign should be removed and I would request that he be allowed a period of thirty days from the date of this letter to remove the sign so as to avoid the necessity of further action on the part of the Florida Depart- ment of Transportation." The above statement was contained in a letter from Richard Wayne Grant, attorney for Sefton Miller, Respondent, and is considered dispositive of the issue.
Recommendation Remove subject sign after November 20, 1977, unless said sign has previously been removed by the Respondent. DONE and ORDERED this 31st day of October, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 Hayden Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Section Department of Transportation Hayden Burns Building Tallahassee, Florida 32304 Richard Wayne Grant, Esquire Post Office Box 209 Marianna, Florida 32446
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. The property which Petitioner filed an application for an access connection to US Highway 17 (SR 35) is located on the southeast corner of the intersection of SR 35 and Sixth Street in Fort Meade, Polk County, Florida. Petitioner's property abuts the east right-of-way of SR 35, with frontage of approximately 235 feet and the south right-of-way of Sixth Street, with frontage of approximately 235 feet. SR 35 has been designated as an intrastate system route. The segment of SR 35 involved in this proceeding has been assigned an Access Management Classification of Four with a design speed of 50 miles per hour and a posted speed of 40 miles per hour . Also, this segment of SR 35 has a "non-restrictive median" as that term is defined in Rule 14-97.002(23), Florida Administrative Code. The distance between all cross streets running east and west which intersect SR 35 within Fort Meade, Florida, including Sixth Street, is approximately 440 feet. (See Petitioner's exhibit 2, Department's aerial photo of the area) Petitioner's application proposes a full movement access connection to be located south of Sixth Street on SR 35 with a connection spacing between Sixth Street and the proposed connection of 190 feet. This distance was determined by measuring from the south edge of the pavement of Sixth Street to the north edge of pavement of proposed access in accordance with Rule 14- 97.002(19), Florida Administrative Code. The centerline of the proposed connection on SR 35 is located approximately 220 feet south of the centerline of Sixth Street. Petitioner's application also proposes an access connection to Sixth Street which would give Petitioner indirect access to SR 35 through Sixth Street. The centerline of the proposed connection on Sixth Street is located approximately 135 feet east of the east curb of SR 35 presently in place. Petitioner's proposed access connection to SR 35 is located immediately north of a crest of a rise over which SR 35 traverses. Both south and north of the crest is a depression through which SR 35 traverses. The point where Sixth Street intersects SR 35 is located approximately at the bottom of the depression north of the crest. A motorist attempting to enter SR 35 from the proposed access connection would have a full view of any vehicle moving north through the depression to the south of the crest or moving south through the depression to the north of the crest. A motorist attempting to enter SR 35 from the east on Sixth Street would have only a partial view of a vehicle moving north through the depression to the south of the crest but a full view of any vehicle moving north through the depression north of the crest. Both Dennis Wood and Michael Tako testified that each had viewed the traffic moving north through the depression south of the crest from a point where Sixth Street intersects SR 35. They also testified that each had, from a point where Sixth Street intersects SR 35, at least a partial view at all times of the vehicles moving north through the depression south of the crest. Based on the above and their assumption that the distance between cross streets along SR 35 was 600 to 700 feet rather than approximately 440 feet as indicated in Petitioner's exhibit 2, Department's aerial photo of the area, Wood believed and Tako concluded that there was minimum clear sight distance that would allow a motorist exiting Sixth Street to cross SR 35 safely, or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound land of SR 35 safely. Because of the continuous partial view of the vehicles moving north through the depression south of the crest from a point where Sixth Street intersects SR 35 it may appear that there was minimum clear sight distance in that area. However, there is insufficient evidence to establish facts to show that a minimum clear sight distance was established because the height of the originating clear sight line above the pavement or the height of the clear sight line above the pavement at the vehicle observed, which are required to establish a minimum clear sight distance (See Department's exhibit 10), were not established. Also, the estimate of the distance between the originating point of the clear sight line and the ending point of the clear sight line at the vehicle observed was flawed due to the use of incorrect distances between the cross streets. There is insufficient evidence to show that a motorist looking south from the point where Sixth Street intersects SR 35 would have the required minimum clear sight distance as calculated by Department, as shown in Department's exhibit 10, to allow a motorist to cross SR 35 safely or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound lane of SR 35. Presently, there are three access connections of approximately 20 feet in width on SR 35 where Petitioner's property abuts SR 35. These access connections where constructed before Petitioner had ownership of the property. However, since there will be a change in land use, these access connections will be closed if the site is developed whether this access permit is granted or denied. Petitioner plans to close two of these access connections and extend the opening to the third one if the application is approved. SR 35 is a moderate volume road with approximately 17,000 average daily trips (ADT's), increasing approximately 500 ADT's annually over the past five years. Sixth Street has approximately 100 to 150 ADT's at present with the ADT's projected to increase to approximately 300 if the site is developed and Petitioner's application for the access connection to SR 35 is denied. However, the number of vehicles entering SR 35 which constitutes traffic utilizing Petitioner's establishment will be the same no matter where this traffic enters SR 35. Without the direct access connection to SR 35 there will be problems with internal customer traffic flow and with the movement of semi-tractor trailers that Petitioner uses to make deliveries to its store. Although the present site plan design may be modified so as to utilize the indirect access to SR 35 through Sixth Street, the modification of the site plan design would create problems that would most likely result in the City of Fort Meade not approving the modified site plan design. Although using Sixth Street as an indirect access to SR 35 from the site may provide a safe ingress and egress to and from SR 35, the lack of a minimum clear sight distance notwithstanding, the Petitioner's proposed access connection would provide a much safer ingress and egress to and from SR 35 because of a better clear sightdistance. Although the indirect access to SR 35 through Sixth Street may provide safe ingress and egress to and from SR 35, the indirect access does not provide reasonable access to the site as the term "reasonable access" is defined in Rule 14-96.002(22), Florida Administrative Code. The primary purpose of limiting access to SR 35 is to provide safer conditions for vehicles utilizing SR 35.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order granting Petitioner's Connection Application Number C-16-010-90 and issuing Petitioner a nonconforming permit for the construction of the access connection to SR 35 as designed and shown in the site plan attached to the application with conditions deemed appropriate by the Department and provided for under Rule 14.96.009, Florida Administrative Code. RECOMMENDED this day 30th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2794 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 16 are adopted in substance as modified in Findings of Fact 1 through 21. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Diedre Grubbs Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 695 Suwannee Street Tallahassee, Florida 32399-0450 Douglas E. Polk, Jr., Esquire BROWN CLARK & WALTERS, P.A. 1819 Main Street, Suite 1100 Sarasota, Florida 34236 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions This matter came before the Department for entry of a Final Order pursuant to an order closing the file at the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Agreement. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: The Settlement Agreement entered into between the parties dated January 14, 2010, a copy of which is attached, is approved and incorporated into this Final Order. The parties are directed to comply with its terms, DONE AND ORDERED this 5 day of February, 2010, in Tallahassee, Leon County, Florida. yf) SANDRA C. LAMBERT, Director Division of Driver Licenses Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Driver Licenses this 4442 day of February, 2010. + 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: Judson M. Chapman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Frederick C. Morello, Esquire 111 North Frederick Ave., 2" Floor Daytona Beach, Florida 32114 James H. Peterson, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060
The Issue Whether the Respondent by erecting the two subject signs violated the state and federal regulation and laws by erecting one sign on the right of way of U.S. 319, a Federal Aid Primary Road, and erecting one sign within five (5) feet of said highway. Whether subject signs should be removed for lack of permits.
Findings Of Fact Claimant contended and Respondent admitted that the two subject signs were in violation of set-back requirements of Chapter 479 and the Federal Beautification Act as charged.
Findings Of Fact The sign in issue in these proceedings is mounted on the bed of a pick- up truck which is generally parked opposite Respondent's business. The vehicle is moved daily, sometimes several times per day. On August 5, 1987, a DOT sign inspector observed Respondent's sign in an area appearing to be on the DOT right-of- way of SR 52 in Pasco County. Measurements were taken to locate the sign with respect to SR 52. The DOT right-of-way along SR 52 at this location extends 50 feet north and south of the centerline of SR 52, and 38 feet from the edge of the pavement of SR 52. On August 5, 1987, the DOT sign inspector using a steel tape measure found Respondent's sign to be located 12 feet from the edge of the pavement, thus clearly on the right-of-way.
Findings Of Fact On or about August 11, 1987, Respondent owned a sign advertising the business which was located on the DOT right-of-way along U.S. 41 in Pasco County. When Respondent moved into its present location it placed some of its castings on display on the right-of-way alongside its business. The co-owner was told by the Deputy Sheriff that the castings had to be removed from the right-of-way but it was all right to leave the sign on the DOT right-of-way. Accordingly, until the sign was cited for the violation, Respondent thought its sign was legally erected.
