The Issue Whether Amendment 95-2 to the Town of Jupiter Comprehensive Plan, as originally adopted by Ordinance 68-93 on October 3, 1995, and amended by Ordinance 13-96 on March 19, 1996, is “in compliance” as defined in Chapter 163, Part II, Florida Statutes (1995).
Findings Of Fact The Parties Petitioners are all political subdivisions of the State of Florida. Petitioner, Board of County Commissioners of Palm Beach County (hereinafter referred to as “Palm Beach County”), is a county located on the southeast coast of Florida. Petitioner, Martin County, is a county located adjacent to, and north of, Palm Beach County. Part of Martin County’s boundary is located adjacent to the Town of Jupiter. Petitioner, the Village of Tequesta (hereinafter referred to as “Tequesta”), is a municipality located in Palm Beach County. Tequesta’s western boundary abuts the eastern boundary of the Town of Jupiter. Respondent, the Town of Jupiter (hereinafter referred to as “Jupiter”) is a municipality located in Palm Beach County. The plan amendment at issue in this proceeding was adopted by Jupiter. Jupiter has a population of approximately 39,000 people. Respondent, the Department of Community Affairs (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of, among other things, implementing Part II, Chapter 163, Florida Statutes, the Local Comprehensive Planning and Land Development Regulation Act (hereinafter referred to as the “Act”). Intervenor, the Shores of Jupiter Homeowners’ Association, Inc., is a not-for-profit Florida corporation. Intervenor represents the interest of the Shores of Jupiter residential development. The Shores of Jupiter is located in Jupiter. The Geographic Area at Issue. The boundary of northeastern Palm Beach County which abuts the southwestern boundary of Martin County extends westerly from the Atlantic ocean for a couple of miles. The boundary then turns south for less than a mile before returning to the west. The area at issue in this proceeding consists of an area within the jurisdiction of four different local governments: Palm Beach County, Martin County, Jupiter and Tequesta. Jupiter and Tequesta are located in the northeast corner of Palm Beach County. See Palm Beach County exhibit 39. Tequesta is located in the extreme northeast corner of Palm Beach County. Part of the northern border of Tequesta abuts the southern boundary of Martin County. Jupiter is located primarily to the south of Tequesta. Most of Jupiter and Tequesta are separated by the Loxahatchee River (hereinafter referred to as the “River”). The River also has two branches separating Jupiter and Tequesta. See Palm Beach County exhibit 39. The northernmost portion of Jupiter abuts the Martin County-Palm Beach County boundary where the boundary turns to the south and then back to west. Most of the area at issue is comprised of residential subdivisions. Jupiter’s current and projected land uses are primarily residential. Land uses in Jupiter in 1995 and projected for 2000 in the Data and Analysis for the Jupiter Comprehensive Plan (hereinafter referred to as the “Plan”), suggest that residential uses and projected residential land uses of vacant land to be developed by the year 2000 will predominate in Jupiter. There is a relatively large tract of undeveloped land, referred to as “Section 28” during the formal hearing, which is not now used for residential purposes. Section 28 is located in the west, north-west portion of Jupiter. Section 28 abuts Martin County where the boundary of Palm Beach County and Martin County turn back to an east-west direction after the north-south turn. Section 28 is located to the east of Interstate 95 and the Sunshine Parkway, west of the River, north of Indiantown Road and south of the Martin County line. Existing Transportation Corridors. The roads that are at issue in this proceeding are depicted on Palm Beach County exhibit 1. The road identified in red as Roosevelt Street is conceptual only. The depicted connection of Island Way and Northfork Drive is also conceptual. To the western boundary of Jupiter and the area at issue in this proceeding is located Interstate 95 and the Sunshine Parkway. Both roads begin a turn from a northerly direction to the northwest. The main corridor along the eastern portion of Jupiter located to the west of the North Fork of the River is Loxahatchee River Road. Loxahatchee River Road runs to the north from the intersection with Center Street and then follows the northwestern route of the North Fork of the River to the boundary of Martin County. The road continues into Martin County and connects with Island Way. Loxahatchee River Road functions as a county collector road. This means that it carries a high volume of traffic and is intended to connect and lead traffic from one set of local street connections to another. Loxahatchee River Road is bordered by unincorporated subdivisions, including Whispering Trails, Imperial Woods, Fox Run and Eagle’s Nest. Loxahatchee River Road is a two-lane road. It has been used for a number of years as a traffic corridor between Palm Beach and Martin Counties. It is poorly designed for this purpose. Its design pre-dates contemporary transportation planning. Houses face onto the road and have direct driveway access to the road. These houses are not protected from the road by a buffer. To the west of Loxahatchee River Road and to the east of I-95, the main north-south road corridor is made up of Longshore Drive and Northfork Drive (hereinafter referred to as the “Northfork/Longshore Corridor”). The Northfork/Longshore Corridor is a two-lane road. Longshore Drive runs in a generally northern direction from Central Boulevard until it connects with Northfork Drive. Northfork Drive continues in a generally northern direction. It parallels a portion of the boundary of Martin and Palm Beach Counties which runs north-south. The Northfork/Longshore Corridor is bordered by residential subdivisions, including the Shores of Jupiter, Northfork, The Preserve and Cypress Cove. All of these subdivisions were annexed by Jupiter in March, 1993. Northfork Drive was designed to accommodate a thoroughfare. Residents are buffered from the road and face away from it. Traffic from residents along Northfork Drive is directed to limited access roads to Northfork Drive. Northfork Drive terminates about a quarter of a mile south of the portion of the boundary of Martin and Palm Beach Counties that runs east to the Atlantic Ocean and where the boundary turns to the south. Approximately a quarter of a mile north of the termination point of Northfork Drive is the southern termination point of Island Way. Island Way is located in Martin County. An unpaved right-of-way separates the southern terminus of Island Way and the northern terminus of the Northfork/Longshore Corridor. In the south, the main east-west corridor is Indiantown Road and Center Street. Indiantown Road is a primary commercial area for residents of the area at issue. Residents in the area use the Northfork/Longshore Corridor and Loxahatchee River Road to access these commercial areas. The road system of the area at issue is dominated by the River and its tributaries. The River creates a physical barrier to travel by the residents of the area. Due to this barrier, Central Boulevard, Church Street and Roebuck Road, which all connect with the Northfork/Longshore Corridor and Loxahactchee River Road, provide the primary routes for residents of the area to access Indiantown Road. Transportation Planning for the Area. A number of factors have caused difficulties in planning for the traffic needs of the area at issue in this proceeding. The area is constricted by the River, the area is under the jurisdiction of four local governments, all of which are involved in this proceeding, and the north-south jog in the boundary of Palm Beach and Martin Counties has the potential to create greater traffic impacts between the two counties. The fact that the area is primarily residential and largely existing development also contributes to the problem. Most motor vehicle trips generated in the area involve travel to and from residents in the area to destinations outside the area. The fact that the development already exists makes it difficult to establish a comprehensive internal grid street system with a continuous and unfragmented regional road network. Future planned developed will only add to this problem. The projected development of Section 28 could significantly add to the traffic problems of the area. Section 28 is bounded on the west by I-95 and the turnpike. Traffic generated in the area will have to travel north into Martin County or south and east through Jupiter. Roads required for travel into Martin County from Section 28 do not exist. Prior to 1993 the Northfork/Longshore Corridor was located in unincorporated Palm Beach County. In 1986 Palm Beach County undertook a transportation study for northern Palm Beach County. Public meetings were conducted and studies were undertaken to evaluate roadway corridors for the area necessary to accommodate existing and future traffic. The evaluation included a consideration of the needs of traffic moving between Palm Beach and Martin Counties. As a result of Palm Beach County’s study, it was ultimately concluded that three intercounty thoroughfares were needed for the area: (a) Loxahatchee River Road; (b) Longshore Drive(connected to Northfork Drive, connected to Island Way); and (c) a new corridor, the “Western Corridor”. Loxahatchee River Road and the Northfork/Longshore Corridor were added to the Palm Beach County Thoroughfare Identification Map. Loxahatchee River Road was already being utilized as an intercounty traffic corridor despite design limitations for such use. Hearings were conducted by Palm Beach County in November, 1987, at which the use of Longshore Drive was considered as a possible second corridor. The Jupiter transportation planner at the time presented a report comparing possible thoroughfare alignments, including the suggestion that Longshore Drive be connected to a thoroughfare to be constructed through the area where Northfork Drive was ultimately constructed and that the thoroughfare be connected with Island Way. Palm Beach County accepted this suggestion. The Western Corridor, if constructed, would run through Section 28 and probably connect Indiantown Road with Island Way. The exact route for such a corridor has not been decided. Nor has right-of-way for the corridor be acquired or funding for the corridor been set aside. The Loxahatchee River Road and the Northfork/Longshore Corridor were added to Palm Beach County’s Thoroughfare Right-of- Way Identification Map (hereinafter referred to as the “TIM”). Although the TIM is not used to identify capital improvements, it is used by Palm Beach County in the Traffic Circulation Element of Palm Beach County’s comprehensive plan as a land use planning tool. Annexation of the Shores of Jupiter. Palm Beach County suggested in 1989 that the various municipalities in the county should look at areas which could be annexed into the municipality while promoting the efficient delivery of urban services. Jupiter looked at unincorporated areas surrounding it as possible areas to annex, consistent with Palm Beach County’s suggestion. Jupiter looked at areas which might be annexed also in order to comply with its own Plan, which was adopted in 1990. As part of its consideration of areas which it considered desirable to annex, Jupiter routinely sent letters to communities explaining the benefits of annexation by Jupiter. Jupiter also addressed concerns expressed about annexation by businesses and residents of areas it was considering. Since 1990, Jupiter annexed approximately 50 different properties. Among the areas considered for annexation by Jupiter were subdivisions located along Northfork Drive, including the Shores of Jupiter. Discussions between Intervenor and Jupiter about annexation of the Shores of Jupiter began in 1992. Intervenor made it clear to Jupiter that it would consider supporting annexation only in Jupiter supported its efforts to avoid the connection of the Northfork/Longshore Corridor to Island Way. Counsel for Jupiter informed the then Town Manager of Intervenor’s position in a memorandum dated July 23, 1992: The Shores does not want a through road or “T” intersection at the northern boundary of the Northfork subdivision . . ., which allows Longshore Drive to be extended into Martin County. The Shores is intractable on this issue. Anything less than the Town’s vigorous support of the Shores in this regard will doom the annexation unless the Town supports to the fullest extent the prevention of Longshore Drive’s extension into Martin County. Consequently, if there is to be another corridor in northern Palm Beach County, The Shores would only support the “western corridor.” . . . See Palm Beach County exhibit 28. As a solution to Intervenor’s concerns, Jupiter’s attorney suggested the following solution: The proper vehicle for the Town to address the concerns of The Shores is through the Town’s comprehensive plan. Of course, the Town’s comprehensive plan can only be applied to The Shores, Northfork, Shorewood and Cypress Cove subdivisions and the Longshore Drive corridor, if these areas are within the municipal jurisdiction of the Town. Nevertheless, the Town Council can publicly describe its intention to adopt appropriate goals, objectives and policies it proposes to adopt as part of amendments to its comprehensive plan to address the concerns of The Shores. It may also be appropriate for the Town to address corridor planning issues, in particular, appropriate alignments, if any, of a “western corridor” in the Transportation Element Plan. Finally, the Town should consider including the alignment of a “western corridor” as part of its western interchange planning study. In a letter dated February 16, 1993, the Mayor of Jupiter, the Honorable Karen J. Golonka, informed residents of the Shores of Jupiter of a special referendum election on the issue of annexation of the Shores of Jupiter into Jupiter. Mayor Golonka suggested that residents vote “Yes” on the referendum and gave the “top three reasons” why Jupiter believed annexation would be in the best interest of residents of the Shores of Jupiter. In addition to the improved law enforcement protection and the protection of property values, Mayor Golonka informed residents that, while members of the Palm Beach County commission were supporting the connection of the Northfork/Longshore Corridor to Island Way, Jupiter was opposed to the connection. Mayor Golonka indicated that Jupiter had adopted Resolution 47-92 expressing the following: the Town’s opposition to making Longshore Drive a major arterial, and the Town’s intention, if the annexation is successful, is to amend our Comprehensive Plan to ensure that Longshore Drive remains the treelined collector street seen today. Palm Beach County exhibit 7. Resolution 47-92 had been adopted by Jupiter in September of 1992 because Intervenor had asked Jupiter to take a formal position on the question of the Northfork/Longshore Corridor connection with Island Way. In March, 1993, a dual referendum was conducted concerning the annexation of certain areas, including the Shores of Jupiter. The Shores of Jupiter was subsequently annexed by Jupiter. While the position taken by Jupiter with the Intervenor prior to the adoption of the amendment at issue in this proceeding does not conclusively prove that the amendment is not “in compliance” with the Act due to the lack of adequate data and analysis to support the amendment, the evidence did prove that Jupiter had already decided to take a position similar to the position established in the amendment without determining whether adequate data and analysis for that position existed. The Challenged Amendment Adopted Through Ordinance 68-93. Subsequent to the annexation of the Shores of Jupiter, Jupiter proposed an amendment to its Plan which included, among other things, a proposed Policy 1.4.4 providing, in part, that “[t]he Town will discourage any connections of Northfork Drive to Island Way or any other road or roadway corridor located in Martin County.” The plan amendment proposed by Jupiter (hereinafter referred to as the “Original Plan Amendment”) was not transmitted to the Department until September of 1994. Following its review of the Original Plan Amendment in October, 1994, the Department issued its Objections, Recommendations and Comment Report (hereinafter referred to as the “First ORC”). The Department raised several objections to the Original Plan Amendment. Among other things, the Department objected on the basis of the lack of supporting data and analysis, lack of specificity of the proposed policies, lack of intergovernmental coordination and the creation of internal inconsistencies in Jupiter’s Plan. Jupiter responded to the First ORC on October 9, 1995. In response to the objections raised by the Department with regard to Policy 1.4.4, Jupiter responded that it intended to change the policy to provide that the policy to discourage the connection of Northfork Drive would only apply in the absence of a “demonstrated need “for the connection. See Palm Beach County exhibit 33. Jupiter also informed the Department that the data and analysis that supported Policy 1.4.4 consisted of a 1994 traffic planning study, the Joint Local Government Traffic Engineering Study (hereinafter referred to as the “Joint Traffic Study”), and Jupiter’s analysis of the Joint Traffic Study. While Jupiter suggested that it relied upon other “data and analysis”, the response to the Department’s First ORC only indicates that Jupiter relied upon the Joint Traffic Study. On October 3, 1995, following a public hearing, Jupiter adopted Ordinance 68-93 and the Original Plan Amendment therein. On December 1, 1995, the Department issued a Notice of Intent to Find Not in Compliance Jupiter’s Original Plan Amendment. A Statement of Intent describing numerous inconsistencies found by the Department between the Original Plan Amendment and the Act was entered with the notice. Petition for Formal Hearing, Settlement Negotiations and Adoption of the Remedial Amendment. On or about December 6, 1995, a petition challenging Jupiter’s Original Plan Amendment was filed by the Department with the Division of Administrative Hearings. The matter was designated case number 95-5930GM and was assigned to the undersigned. Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., were allowed to intervene in case number 95- 5930GM by Order entered January 8, 1996. Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996. The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department, Jupiter and the Shores of Jupiter ultimately reached a stipulated settlement. Palm Beach County and Tequesta did not, however, enter into the settlement. Upon the filing of the Stipulated Settlement Agreement, the abeyance of case number 95-5930GM was extended. Pursuant to the Stipulated Settlement Agreement, Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find Amendment 95-2 (hereinafter referred to as the “Remedial Amendment”), in compliance to be published. On or about May 2, 1996, Martin County filed a petition in response to the April 20, 1996 Notice of Intent to find the Remedial Amendment in compliance. The Petition was filed with the Division of Administrative Hearing on May 23, 1996. Martin County’s petition was designated case number 96-2563GM. Palm Beach County and Tequesta filed amended petitions in response to the Remedial Amendment. The amended petitions were accepted by Order entered June 5, 1996. By Order dated July 9, 1996, the parties in case number 95-5930GM were realigned, the two cases were consolidated, the stay was lifted and Martin County was allowed to intervene in case number 95-5930GM. The Remedial Amendment. The Remedial Amendment adopted by Jupiter and found in compliance by the Department includes an addition to the Traffic Circulation Element of Jupiter’s Plan. The Remedial Amendment adds Goal 4, Objective 4.1 and eight policies to implement the Goal and Objective to the Traffic Circulation Element of the Plan. The Remedial Amendment adopted by Jupiter provides the following, with modifications to the Original Plan Amendment noted: Neighborhood Protection The Town of Jupiter recognizes the need for a traffic circulation system that serves the needs of its residents, provides roadways with the least amount of congestion, promotes business and economic development of the community, and protects existing and proposed residential neighborhoods. The construction of new roads or expansion of existing roads should be accomplished in a manner that minimizes any impacts on the Town’s residential neighborhoods. The Town can minimize the impacts of road construction or expansion through such means as : diverting the flow of through traffic away from streets that serve existing neighborhoods, discouraging future thoroughfare or traffic circulation plans which encourage nonresidential or non- resident use of neighborhood streets, requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan, and coordinating/cooperating with all appropriate governmental agencies to ensure new or expanded roadways will not adversely affect the Town’s residential areas. With respect to intergovernmental coordination/cooperation, the Town should work closely with both Palm Beach County and Martin County adjacent local governments and any other appropriate governmental entities to ensure that future transportation planning, roadway construction, and development approvals are supportive of efforts to protect and enhance existing and proposed residential neighborhoods. GOAL 4: To accommodate a variety of regional, intercounty, intracounty, and local travel demands in ways that minimize traffic congestion; encourage pedestrians; reduce the overall amount of travel for daily goods and services; and protect the integrity of existing neighborhoods. Objective 4.1: The Town of Jupiter will continue to study and evaluate whether or not an additional intercounty or intracounty transportation corridor for the area west of Loxahatchee River Road, east of I-95, and north of Indiantown Road is desired or needed in this geographic area; and assuming such a corridor is necessary, shall coordinate/cooperate with adjacent local governments and any other appropriate and governmental entities to identify the appropriate thoroughfare route of that corridor. Policy 4.1.1 The Town of Jupiter, in coordination/cooperation with Palm Beach County, Martin County, the Village of Tequesta, the Metropolitan Planning Organization, and other appropriate governmental agencies, shall encourage and participate in long range transportation planning efforts that protect existing or proposed residential neighborhoods by locating new or expanded roadways in a manner that does not adversely affect such neighborhoods. Policy 4.1.2 The Town of Jupiter, to the extent possible, shall encourage the construction of new roads and the expansion of existing roads in a manner that protects existing or proposed residential neighborhoods by diverting or eliminating the flow of non-resident or through traffic, and requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan. Policy 4.1.3 The Town Shall rReview planning and other data generated by the Town’s western interchange study and other appropriate sources to determine whether or not the County’s western corridor should be aligned with Island Way or other right-of- way in Martin County west of The Shores. Policy 4.1.4 The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. Policy 4.1.5 In the event an additional intercounty or intracounty roadway serving Palm Beach County and Martin County via Island Way or other right-of- way is necessary, this corridor’s route shall be aligned to a north-south route west of the present Jupiter Community Park. Policy 4.1.6 If an additional intercounty or intracounty corridor is constructed, the Town shall coordinate/cooperate with adjacent local governments to not align the corridor so as to not adversely impact existing residential neighborhoods. Policy 4.1.7 The Town shall coordinate/cooperate with Palm Beach County, Martin County, the Village of Tequesta, and any other affected governmental agencies to establish an overall vehicular circulation plan, including any additional north-south transportation corridors needed to alleviate existing or anticipated traffic congestion. Policy 4.1.8 The Town shall coordinate/cooperate with Martin County, Palm Beach County, the Village of Tequesta, and any other affected governmental agencies to discourage the creation of intercounty or intracounty traffic circulation patterns that provide ingress and egress to residential or nonresidential developments in Martin County solely through the Town of Jupiter and Palm Beach County. [Additions indicated by underlined words and eliminated words struck through]. Pursuant to the Remedial Amendment, Jupiter essentially modified the Original Plan Amendment, found to be not in compliance by the Department, by: Changing the term “cooperate” to “coordinate/cooperate”; Indicating that Jupiter will involve “adjacent local governments and any other appropriate governmental entities” in its efforts; and Modifying Policy 4.1.4 (formerly numbered Policy 1.4.4) as follows: The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified with respect to based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. [Additions indicated by underlined words and eliminated words struck through]. The Adequacy of Data and Analysis. The data and analysis submitted by Jupiter in support of the Original Plan Amendment and found to be inadequate by the Department consisted of the Joint Traffic Study and Jupiter’s analysis thereof. No additional data and analysis has been provided by Jupiter. The Department, while disagreeing with Jupiter and Intervenor as to the relevancy and adequacy of the Joint Traffic Study, suggested at hearing that the Remedial Amendment is supported by data contained in the Plan. In particular, the Land Use Intergovernmental Coordination and Traffic Circulation Elements. The stated purpose of the Joint Traffic Study was to: . . . determine existing traffic patterns crossing the Martin/Palm Beach Count Line in the vicinity of Jupiter and Tequesta for todays travel and to make a reasonable projection of probable future traffic patterns when the area reaches build-out that the engineering professionals of the affected jurisdictions could agree upon. Elected officials would then be able to look at regional roadway issues and needs required to meet the projected levels of traffic. Joint Exhibit 7 The Joint Traffic Study was a collaborative effort of the local governments involved in these proceedings. In order to understand whether the Joint Traffic Study provides data and analysis which can be relied upon to support the Remedial Amendment, it must be understood what portion of the Remedial Amendment is at issue. The Remedial Amendment reflects several policy choices of Jupiter. For example, the Remedial Amendment reflects the policy of Jupiter of protecting the character of its neighborhoods. See, e.g., Objective 4.1. The data of the Plan is sufficient to support this broad, general policy. Policy 4.1.4 of the Remedial Amendment also reflects a policy choice of Jupiter that the connection of Northfork Drive and Island Way, or any similar connection, should be discouraged. This policy choice reflects a conclusion that such a connection is not necessary or, if necessary, the detriments to the surrounding neighborhoods of the Northfork/Longshore Corridor will outweigh the need for the connection. Neither the Plan nor the Joint Traffic Study support these conclusions. Policy 4.1.5 and 4.1.8 also go beyond establishing a general policy of protecting neighborhoods. Policy 4.1.5 reflects a policy of Jupiter that if there is a need to connect Island Way with a corridor in Palm Beach County it should be accomplished through construction of a Western Corridor. Policy 4.1.8 reflects a policy that no ingress and egress should be allowed through any neighborhood in Jupiter. While a general policy of protecting neighborhoods may be supported by the Plan, the application of Policies 4.1.4, 4.1.5 and 4.1.8 requires more than a mere assumption that the connection of Northfork Drive to Island Way will result in detriments that outweigh any benefits of the connection, that the Western Corridor is THE method of connection between Martin and County and Palm Beach County which should be pursued, and that under no circumstances should ingress and egress be allowed through any neighborhood. Such conclusions require more. Jupiter has recognized that plan provisions which control land use and development activities and those addressing specified minimum criterion of the law must be supported by the highest level of data and analysis. Jupiter suggests, however, that the Remedial Amendment is merely an “aspirational provision, one which projects more subjective community-desired-outcomes and is not intended to satisfy one of the mandated minimum criteria areas”. Jupiter argues, therefore, that the Remedial Amendment “demands a less rigorous foundation in data and analysis.” While Jupiter may be correct that the policy choice of the Remedial Amendment concerning general neighborhood protection is aspirational, it is not correct as to the other policy choices concerning the need for the connection of Northfork Drive and Island Way, the need for the Western Corridor or the need to prevent all ingress and egress road in Jupiter. Those policy choices directly reflect land use and development activities as they relate to transportation. Simply assuming that the connection of Northfork Drive and Island Way and that ANY road providing ingress and egress through a Jupiter neighborhood will be harmful to the neighborhoods that border the Northfork/Longshore Corridor ignores the possibility that the connection could be beneficial to other areas of Jupiter due to reductions in traffic in those areas. It also ignores the possibility that steps can be taken to minimize any detrimental impacts. It also ignores the possibility that there may be an insignificant increase in traffic as a result of the connection and/or that the impacts of any increase in traffic may be eliminated through design modifications of the Corridor. Likewise, Jupiter’s assumption that the only way of resolving the need for north-south connector roads between Martin and Palm Beach Counties or within north Palm Beach County should only be accomplished by a Western Corridor ignores other solutions that will better serve the residents of the areas involved. Jupiter’s assumption or intuition also fails to take into account the impact of its policy choices on other governments. For example, the impact on the residents surrounding Church Street if the connection is not made is reflected in the Joint Traffic Study. Jupiter’s assumption allows it to ignore this possible impact. The Joint Traffic Study is deficient for a number of reasons. First, the Joint Traffic Study does not reflect current conditions in the area studied. At the time the Original Plan Amendment was submitted, Jupiter also submitted a land use change for a 183 acre tract of land known as the Weiser Tract. The submittal reflected a change of 158 acres from industrial use to residential use. The Joint Traffic Study had been prepared a year and a half prior to this proposed change and, therefore, does not take this significant modification into account. The modification of the land use of the Weiser Tract could have a significant impact on traffic and, therefore, the conclusions and information contained in the Joint Traffic Study. Because of the land use modification not reflected in the Joint Traffic Study, the Joint Traffic Study cannot be said to constitute the best available data to support the Remedial Amendment. The Joint Traffic Study purports to project or forecast traffic volumes in the area as a result of the build-out of land uses reflected in the comprehensive plans of the local governments involved in the study. In fact, however, the data gathered for the study was data on development and zoning, not projected plan build-out. The evidence failed to prove that development and zoning reflects projected plan build-out. Therefore, it cannot be concluded that the data contained in the Joint Traffic Study was collected and applied in a professionally acceptable manner. The methodology utilized for the Joint Traffic Study also does not support its use as data and analysis to support Jupiter’s policy choice concerning the connection of Northfork Drive and Island Way. The Joint Traffic Study was not intended to provide a formal transportation analysis of alternatives from which one of the local governments involved would elect one alternative. While the Joint Traffic Study may utilize a methodology used by traffic planning engineers on an everyday basis, the evidence failed to prove that traffic planning engineers would use it for the purpose that Jupiter has used it. For Jupiter to rely on the Joint Traffic Study to conclude that the connection of Northfork Drive and Island Way is not necessary and that the policies reflected in Policies 4.1.5 and 4.1.8 are necessary, it would be necessary for the Joint Traffic Study to include an alternative analysis or the data to perform such an analysis. It does not. Such an analysis should compare construction costs and environmental impacts of alternative traffic alignments. Such a study should also include short and long-range projections for traffic conditions, land use data, level-of-service standards and functional classifications for area roads, or existing level-of- service standards. Jupiter’s analysis of the Joint Traffic Study is also inadequate. The Joint Traffic Study discusses four different scenarios. Jupiter, however, elected to only utilize two of those scenarios. As to the existing Plan, the portions of the Plan relied upon by Jupiter and the Department, while recognizing the importance of the coordination of issues related to roads and traffic safety, do not support the specific objective of the Remedial Amendment to discourage the connection of specific roads, the location of the Western Corridor or the prevention of roads of ingress and egress in Jupiter. Nor do the provisions of Plan which provide an inventory of pertinent agencies and provide that the agencies should be contacted and worked with on common problems. While data and analysis support the other provisions of the Remedial Amendment, data and analysis does not support Policies 4.1.4, 4.1.5 and 4.1.8. Conditional Policy or Self-Amending Policy. Policy 4.1.4 provides that the general policy of Jupiter is (in cooperation/coordination with other agencies) to discourage the connection of Northfork Drive and Island Way UNLESS there is a “demonstrated need” for the connection. It has been suggested by Petitioners that this provision creates a self- amending policy--a policy that may change without the need to follow the amendment procedures required in the Act. In support of this position Petitioners have argued that if demonstrated need is found by Jupiter to have been shown, the policy to discourage automatically ceases to be the policy of Jupiter even though the amendment process of the Act has not been fulfilled--that the policy of discouragement becomes “inoperative”. A self-amending policy is one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted. Typically, a self-amending policy is one that provides that certain things will occur if some other event, such as the amendment of a law by another jurisdiction, takes place. For example, if the policy is “X” unless law “Z” is modified, then the policy will be whatever law “Z” requires even though law “Z” may be amended in the future. Because it cannot be known how law “Z” may be amended in the future, policy “X’s” reliance on law “Z” is self-amending.. Obviously, that is not the type of policy at issue in this proceedings. A conditional policy, which Jupiter suggests Policy contains, is one which may change if certain clear contingencies or alternatives, described at the time of adoption of the Policy, are provided. For example, a policy that allows a general residential density but provides that, if land is to be used for affordable housing, a different density will be allowed, is an example of a conditional policy. The policy at issue in this proceeding is not a self- amending policy. It sets out a clear general policy: to discourage the connection of Northfork Drive and Island Way. And it sets out specific conditions for changing that policy: the showing of demonstrated need, which is further defined by the policy. The evidence failed to prove that Policy 4.1.4 is a self-amending policy. Unbridled Discretion? Petitioners have suggested that Policy 4.1.4, in particular, the portion of the Policy providing for the determination of whether there is a “demonstrated need” for a connection of Northfork Drive and Island Way, vests unbridled discretion in Jupiter. In support of this position, Petitioners have pointed to the failure of Policy 4.1.4 to specify the following: a) the specific office or person that will make the determination; and (b) the specific time(s) when the determination will be made. Petitioners have also argued that the Policy fails to specify sufficient objective criteria to be considered in determining whether there has been a showing of demonstrated need and argue that Jupiter is not capable of performing the balancing of need against its policy to protect its neighborhoods. As to the lack of specificity as to which office or person will perform the needs analysis, a reading of the Plan, with the Remedial Amendment, makes it clear that the ultimate responsibility rests with Jupiter and its governing body. Whether the alleged need is raised from within or without Jupiter need not be specified. The Act does not require more than that Jupiter be ultimately responsible. As to when the analysis will or may be performed, the lack of specificity would not be fatal in and of itself if the policy to discourage were supported by data and analysis. If the general policy to discourage the connection were supported by data and analysis, then the needs analysis could be performed at any time. Having failed to provide data and analysis to support the general policy, the lack of specificity as to when an initial determination of need will take place is contrary to the Act. The evidence also failed to prove that the definition of “demonstrated need” is inadequate. The “demonstrated needs” analysis specified by the Policy is similar to the type of analysis that would be required for Jupiter to make the policy choices concerning the lack of need for the connection of Northfork Drive and Island Way. Had it performed such an analysis before adopting the Remedial Amendment, there might have been sufficient data and analysis to support its policy choices. Finally, the question of whether Jupiter is capable of carrying out the balancing of demonstrated need and its neighborhood protection policy involves the application of the Policy. This is not an issue of whether the language of the Policy is “in compliance” with the Act. The Use of the Term “Discourage”. Evidence was presented by Petitioners to suggest that the term “discourage” as used in Policy 4.1.4 is vague and, therefore, violative of the Act. The term “discourage” is not a technical term. Therefore, it should be given its plain ordinary dictionary meaning. Whether the term, as defined in its ordinary sense, is so vague as to be violative of the Act must be determined in the context of the policy in which it is used. In this matter, the lack of specificity as to what specific actions Jupiter will take to “discourage” the connection of Northfork Drive and Island Way does not render Policy 4.1.4 so vague as to be violative of the Act. What is violative of the Act is the policy choice of Jupiter to “discourage” the connection without first adequately considering whether this particular connection should be discouraged. Inconsistency with Palm Beach County’s Thoroughfare Identification Map. Palm Beach County’s charter gives it control over the levels of service allowable on certain collector and arterial roads within the county, even if they are within the boundary of municipalities. This provision allows Palm Beach County to comprehensively plan a countywide transportation network. Palm Beach County’s responsibility for a comprehensive countywide transportation network is reflected in its comprehensive plan. In particular the plan includes a concurrency management system and a thoroughfare identification map (hereinafter referred to as the “TIM”). The TIM reflects the collector and arterial roads over which Palm Beach County exercises transportation authority. The purpose of the TIM is to identify right-of-way required to carry out Palm Beach County’s provision of a countywide transportation network. The TIM has reflected the connection of Northfork Drive and Island Way as part of the countywide transportation network since 1989. Jupiter suggests that the use of the word “discourage” rather than the more absolute language contained in the Original Plan Amendment, eliminates any inconsistency with the TIM. Jupiter has also suggested that all the TIM does is identify right-of-way and the Remedial Amendment does nothing to eliminate that right-of-way. Jupiter’s position concerning the TIM is rejected. The use of the term “discourage” does not eliminate the fact that Jupiter is taking the position in its Plan that Northfork Drive and Island Way should not be connected. Until demonstrated otherwise, this is the stated policy of Jupiter. The TIM on the other hand reflects a decision of Palm Beach County that the connection may be necessary for the benefit of the countywide transportation network. The narrow view of the purpose of the TIM, that it only is intended to protect right-of-way, ignores the broader purpose for which right-of-way is being protected: to insure that Palm Beach County can carry out its countywide transportation network plans. Policy 4.1.4 is inconsistent with that purpose. Impact of the Remedial Amendment on Petitioners. The Petitioners are all local governments that adjoin Jupiter. Palm Beach County has responsibility in the area at issue to insure that the road system in Palm Beach County is in place to accommodate growth as it occurs, to have an appropriately planned system that will handle growth and to maintain the system once it is in place. The Remedial Amendment eliminates one of the possible corridors which Palm Beach County has identified as necessary to carry out its responsibility. It also specifies the location of the Western Corridor as a means of solving north-south corridor needs and eliminates alternatives involving ingress and egress to Jupiter. The use of the Northfork/Longshore Corridor connected to Island Way could be accomplished at a cost of approximately $200,000.00 plus the cost of acquiring the right-of-way. The cost of constructing the Western Corridor, which has been suggested as an alternative to the connection with Island Way of Northfork Drive would be 6 to 7 million dollars. There would be other costs that may be incurred to raise the levels of service on other roads if Northfork Drive is connected with Island Way. The impact of the Remedial Amendment on Palm Beach County could result in delays in its ability to meet its responsibility to meet the needs for improvements in the road system of the area due to increased growth. The Remedial Amendment could also eliminate consideration of the connection and cause the need to pursue more costly alternative road corridors necessary to meet growth in the area. The Remedial Amendment could have the same impact on Martin County and Tequesta. Without the connection the area involved will have an additional traffic burden what will fall on the roads of Martin County, Palm Beach County and Tequesta, requiring the improvement of facilities in those jurisdiction. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The road system of the area will have to be improved to meet that increased traffic. The Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased traffic be handled by infrastructure which will have to be provided by one or more of the Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding Policies 4.1.4, 4.1.5 and 4.1.8 not in compliance with the Act. DONE AND ENTERED this 24th day January, 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1997. COPIES FURNISHED: Paul R. Bradshaw, Esquire Bryant, Miller & Olive 201 South Monroe Street Tallahassee, Florida 32301 Barbara Alterman Assistant County Attorney Palm Beach County Attorney’s Office Post Office Box 1989 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Post Office Box 3475 West Palm Beach, Florida 33402 Gary K. Oldehoff Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, Florida 33408 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas J. Baird, Esquire 11891 U. S. Highway 1 North Palm Beach, Florida 33408 Thomas G. Pelham, Esquire David Russ, Esquire APGAR & PELHAM 909 East Park Avenue Tallahassee, Florida 32301 Bob Bradley Executive Office of the Governor Administration Commission 1601 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission 2105 The Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 The Capitol Tallahassee, Florida 32399-0001
Findings Of Fact Respondent, Alonzo P. Baggett, owns a residential parcel of property at the corner of State Road 35 (Bartow Highway) and Hollingsworth Road in Lakeland. Respondent's property has his residence on it which was purchased in 1961. When purchased, the property was originally a duplex with a driveway serving each unit. Respondent enclosed the carport on the easterly side of the house for use in an upholstery business. When he did so, the driveway at the easterly end of the house remained in place. The house is presently used as a single family residence and the entrance to what was originally the right hand, or eastern unit, is permanently enclosed with concrete block construction. Respondent resides in the western side of the duplex and parks in the driveway which serves that side. The driveway on the right hand side of his property is approximately the length of one vehicle. The intersection of State Road 35 and Hollingsworth Road is a busy signalized intersection. On an average day, upwards of 8500 vehicles pass through the intersection. State Road 35 is a four lane facility in the vicinity of Respondent's home. Both State Road 35 and Hollingsworth Road have dedicated right and left turn lanes at the intersection. The easterly connection which Petitioner is seeking to close is within the radius of the turn at the southwest corner of State Road 35 and Hollingsworth Road and the access is located in front of a stop bar on State Road 35. To use the subject driveway, a driver must back into the flow of traffic at the intersection to exit the driveway. The connection also allows a driver to make a series of conflicting movements in relation to the traffic in the intersection. As it presently exists, there are no signal heads facing the driveway and a driver cannot see the traffic signals at the intersection. Both conditions create a safety problem because a driver, without seeing the signal head, cannot tell who has the right-of-way. Respondent's State Road 35 connection provides uncontrolled access into a controlled intersection and could present an unexpected traffic movement to drivers entering the intersection from either State Road 35 or Hollingsworth Road. Additionally, the backing motion could conflict directly with the pedestrian crosswalk at that corner. Also, there are two public schools, Lime Street Elementary and Lakeland High School, served by the intersection of State Road 35 and Hollingsworth Road. The driveway in question creates a conflict with school children who cross the road at the intersection. Petitioner has engaged in an extensive review project of resurfacing, signalization, and road upgrades to new standards and has received a number of requests to change sidewalk and curb ramps to comply with ADA standards. The upgrades also included relocating some signal loops and Respondent's driveway came within the loop and upgrading review process. Petitioner has no authority to change the zoning of Respondent's property such that he can resell it to a commercial purchaser as Respondent has requested. Closing the subject driveway is necessary to alleviate the safety problems referenced herein. Although the effect of this intended closure will prevent Respondent's access to his driveway on State Road 35, based on the limited usefulness and the access that he has to his property (the Hollingsworth Road connection), the closure is not arbitrary or unreasonable as Respondent contends. In this regard, Respondent still has access from Hollingsworth Road. That access is safer to use and the signalization from that road can be seen and the traffic flow isn't as heavy as State Road 35.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner, the Department of Transportation, enter a final order closing Respondent's connection to State Road 35 and that such closure be completed by Petitioner at its own cost. DONE AND ENTERED this 19th day of July, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of July, 1994. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Alonzo T. Baggett 605 Hollingsworth Road Lakeland, Florida 33801 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Haydon Burns Building Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact DOT has been mandated by the Florida Legislature to functionally classify all roads located in the state in order to effect transfers from the state road system to local government of all roads not intended to be included in the state highway system after July 1, 1982. As will be hereinafter discussed in the Conclusions of Law section of this order, the basic functional categories established by the Legislature include "arterial," "collector" and "local" roads which, in turn, may be subdivided into "major" or "minor" levels, as well as "rural" and "urban" categories. After July 1, 1982, the Legislature has directed that the state highway system consist of only the interstate highway system, all rural arterial routes, all urban principal arterial routes, and those urban minor arterial routes on the existing primary road system as of July 1, 1977. The dispute in this case concerns the accuracy of DOT's classification of State Road 59 in Jefferson County as a "rural collector," as against Respondent's contention that State Road 59 should be classified as an "arterial" and, therefore, maintained in the state highway system. State Road 59 in Jefferson County is approximately 26 miles long, with its southern terminus located at U.S. 98, and its northern terminus immediately south of U.S. 90 at the Leon County line. In its 26-mile length, State Road 59 passes through two communities, each with a population of less than 1,000, and the aforementioned three U.S. highways and an interstate highway, each of which is functionally classified as an "arterial." The condition of State Road 59, as well as its jurisdictional history, is more easily understood if discussed in segmented fashion. The roadway in question is rather easily divisible into the four following segments: Interstate 10 north to the Leon County line, immediately south of U.S. 90 (approximately three miles in length) Interstate 10 south to U.S. 27 (approximately five miles in length); U.S. 27 south to State Road 259 at Wacissa (approximately four miles in length) and State Road 259 at Wacissa south to U.S. 98 (approximately 14 miles in length). That section of State Road 59 from State Road 259 at Wacissa south to U.S. 98 is not a matter of contention in this proceeding insofar as resurfacing requirements are concerned, since DOT intends to resurface that portion of the roadway prior to transfer to Jefferson County. In arriving at the proper functional classification for a roadway, it appears that the DOT's primary objective consideration is relative average daily traffic counts. The Department has recorded history traffic counts since 1969 from literally tens of thousands of traffic sites throughout the state. These counts are performed in a regular routine manner as labor and equipment permit. Evidence introduced at final hearing shows locations of traffic count sites in Leon, Jefferson and Madison counties, and establishes a traffic count history at each of the many traffic count sites in those three counties. In this regard, it must be initially recognized that completely different characteristics attach to vehicular traffic volumes in various areas of the state. For example, even a "minor collector" in an urban area will often have counts substantially higher than a "minor arterial" in a rural area. "Collector" roads located in North Florida are likely to have significantly less traffic volume than "collector" roads in South Florida. In Jefferson County and surrounding areas "collector" roads generally have an average daily traffic volume of from 200 to 1,000 cars per day. A "minor arterial" in this geographic area generally has a traffic volume of between 500 to 6,000 vehicles per day, while a "major arterial" customarily has traffic volume ranging from 2,000 to 16,000 vehicles per day. State Road 59 in Jefferson County in 1975 had an average daily traffic ranging from 261 to 582 vehicles per day. In 1977 the average daily traffic volume had risen to from 523 to 965 vehicles per day, and in 1980 traffic counts established an average daily traffic of from 515 to 970 vehicles per day. These average daily traffic counts place State Road 59 clearly within the range of rural collectors in Jefferson and surrounding counties. In addition to traffic counts, DOT in determining that State Road 59 should be classified as a "rural collector" as opposed to an "arterial" considered the length of trips, the purpose of trips, the speed of vehicles and the relationship of State Road 59 to other roads in Jefferson County and surrounding counties. Personnel of the Department's Central Office and District Office made inspections, and also gathered information from public hearings, a study of the state highway system, consultations with county officials and an examination of state and county records. By virtue of the relatively unpopulated area in which this section of State Road 59 is located, and further in view of the fact that in its relatively short 26-mile length it intersects four highways which are classified as "arterial" roads, the record in this proceeding clearly establishes that the primary purpose served by State Road 59 is to distribute traffic between local and arterial roads. Further, because of its relatively short length and the unpopulated nature of the area in which it is located, neither trip length nor operating speed appear to be particularly important factors in properly classifying this roadway. As previously indicated, the Department has agreed to resurface that portion of State Road 59 in Jefferson County from the point where it intersects State Road 259 in Wacissa south to its intersection with U.S. 98. The section of State Road 59 in Jefferson County from Interstate 10 north to U.S. 90 has been recently resurfaced and is presently in good condition. The section of State Road 59 from Interstate 10 south to U.S. 27 was resurfaced in 1978. However, the Interstate 10 to U.S. 27 segment of State Road 59, in addition to the U.S. 27 to State Road 259 section of State Road 59 has shown some recent deterioration which, it is clear from the record in this proceeding, is due to heavy truck traffic. Apparently most of this heavy truck traffic originates in Taylor County, Florida, enters State Road 59 at its intersection with U.S. 98 and proceeds north on State Road 59 into Leon County and ultimately into the state of Georgia. The volume of heavy truck traffic on State Road 59 is due at least in part to a weight restriction ordinance passed within the last two years by the Jefferson County Board of County Commissioners which has the effect of channeling heavily loaded trucks onto State Road 59 and away from roads currently in the county road system. Notwithstanding these effects, however, it appears that these two sections of State Road 59 are in a physical condition at least equal to contemporary roads of like age and existing functional classification within Jefferson County and surrounding counties. There is no competent evidence of record in this proceeding which would establish that either of these two sections of roadway qualify for resurfacing under any measurement of pavement conditions utilized by the Department. The parties to this proceeding have submitted Proposed Findings of Fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been included in this Recommended Order, they have been rejected as either not having been supported by the evidence or as not having been relevant to the issue in this proceeding.
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 functionally classifying State Road 59 in Jefferson County as a rural collector" and transferring jurisdiction over said roadway to Respondent. DONE AND ENTERED this 7th day of May, 1982, in Tallahassee, Florida. WILLIAM E. WILLIAMS 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 7th day of May, 1982. COPIES FURNISHED: T. Buckingham Bird, Esquire Post Office Box 247 Monticello, Florida 32344 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Allen Potter, District Engineer Florida Department of Transportation Post Office Box 607 Chipley, Florida 32428 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the opening of a public highway-rail grade crossing at the proposed intersection of Tyson Avenue and Bridge Street in Hillsborough County, Florida, meets the criteria set forth in Florida Administrative Code Rule 14-57.012(2)(a)(1-3).
Findings Of Fact The Department has authority over public highway- railroad grade crossings in Florida, including the authority to issue permits for the opening and closing of crossings in accordance with section 335.141(1)(a), Florida Statutes (2015),1/ and rule 14-57.012. New Port owns a 52-acre waterfront parcel (New Port parcel) in Tampa, Florida, bordered to the North by Gandy Boulevard, the east by Westshore Boulevard, to the south by Tyson Avenue and to the west by Tampa Bay, in an area known as Rattlesnake Point. In 2007, the City of Tampa amended its comprehensive plan to encourage the redevelopment of Rattlesnake Point from industrial to a residential/commercial mixed-use waterfront community. The City re-zoned the New Port parcel through PD-A Zoning 07-48 to authorize redevelopment of the parcel in a manner consistent with the comprehensive plan, which includes residential, office, commercial, and hotel uses. CSX owns and operates a rail spur that crosses over Tyson Avenue, just west of Westshore Boulevard and then runs parallel to the north side of Tyson Avenue (the Henry Spur). CSX operates trains, averaging five cars in length, along the Henry Spur transporting goods to and from the two remaining industrial users located on Rattlesnake Point. The trains generally travel between 11 p.m. and 5 a.m., Sunday through Thursday, at a speed between five and ten miles per hour. Vehicular traffic is stopped by automatic crossbars for approximately one and one-half minutes when the train crosses the intersection at Westshore and Tyson. The Henry Spur prevents public access to the New Port parcel from the south at Tyson Avenue. Two private highway-rail grade crossings over the Henry Spur allowed construction equipment to access the New Port parcel from the south during land clearing. As a condition of the New Port re-zoning, the City required that Bridge Street, a north-south road located in the northern portion of the parcel, be extended to provide a north- south corridor through the entire parcel beginning at Gandy Boulevard and terminating at Tyson Avenue. PD-A zoning 07-48 provides, at item 32, that “[t]he property Owner/Developer shall, at no cost to the City, construct/reconstruct and extend Bridge Street from Gandy Boulevard to Tyson Avenue as part of the redevelopment of the site.” The re-zoning further provides that Bridge Street would be a public right-of-way, deeded to the City, and after obtaining certificates of occupancies for retail, office, residential and hotel space, “the developer will be required to connect Bridge Street, from Price Avenue to Tyson Avenue, with Transportation approval, across CSX property, at the developer’s sole expense.” In 2007, CSX, the Department, the City of Tampa, New Port Tampa Bay CDD, and Ecoventure New Port II, LLC, entered into a Stipulation of Parties (Stipulation) to allow a new public highway-rail grade crossing over the Henry Spur at Bridge Street and Tyson Avenue (Crossing). The Stipulation authorized the Crossing upon the permanent closure of the two private highway- rail grade crossings along the Henry spur, and two public highway-rail grade crossings at 5th Avenue and 35th Street in Tampa, Florida. The Stipulation waived all administrative hearing rights provided that all covenants of the agreement were met within 24 months of execution of the Stipulation. The two public crossings were closed in accordance with the Stipulation, but due to changes in the Tampa real estate market, the New Port project did not immediately advance. The crossing at Bridge Street and Tyson Avenue was not constructed within 24 months and the Stipulation expired. Ecoventure New Port II, LLC’s, interest in the New Port parcel was later assumed by New Port Tampa Bay Holdings and interest in the project’s development was re-ignited. On December 18, 2014, the City of Tampa, submitted a Railroad Grade Crossing Application seeking the opening of a highway-rail grade crossing at Bridge Street and Tyson Avenue, which is the same location previously authorized by the Stipulation. CSX did not agree to an amended stipulation to allow for the opening of the Crossing. Laura Regalado has managed the Department’s rail crossing opening-closure program since August 2014. Ms. Regalado received and reviewed the City of Tampa’s application for the Crossing. Ms. Regalado, in February 2015, visited the locations referenced in the application and examined Tyson Avenue where the Crossing was proposed and the two private crossings that were to be closed. The private crossings were unfinished, rough surfaces and had no gates, bells, or flashing lights to warn of oncoming trains. The proposed public Crossing would be required to have an active warning system of gates, bells, and flashing lights. Ms. Regalado concluded that although any new crossing presents a potential danger to the traveling public, the overall safety of the area would be improved by the opening of one gated crossing, in exchange for the closing of two public crossings and the closing of the two unsecured private crossings. To further improve safety in the area, the Department required improved signalization at two additional public crossings as a condition of approval of the Notice of Intent to Permit. Ms. Regalado also examined three side streets to the west of Westshore Avenue for their potential as alternative access routes to the New Port property. The three streets-– McElroy, Paul and Price-–currently accommodate apartments, single-family houses, and light industrial uses. They are narrow side streets ranging from 16 to 18 feet wide, with on-street parking and drainage ditches. Ms. Regalado determined that the streets were not adequate alternative routes as they could not adequately support two-way traffic, construction vehicles, and emergency vehicles. At buildout, the New Port development is anticipated to have an annual average daily traffic (AADT) count of 16,654 vehicles entering and exiting the development. Bridge Street at Gandy Boulevard is expected to be a primary access point at the northern portion of the New Port parcel. The Gandy Boulevard and Bridge Street intersection was reconstructed after 2008 to provide westbound traffic accessing the New Port parcel a left turn lane onto Bridge Street. Eastbound Gandy Boulevard traffic can turn right onto Bridge Street to access the New Port parcel. Vehicles leaving the New Port parcel from Bridge Street are prohibited from turning left (to go west), but can make a right onto Gandy Boulevard to travel east and can then turn at the signalized intersection at Gandy and Westshore to travel north, south or west (after making a u-turn). For City approval of the New Port project, additional access points were required to accommodate westbound traffic and allow for evacuation and traffic flow. Plans approved by the City required Bridge Street be extended across the Henry Spur to Tyson Avenue as the main north-south thoroughfare for the development. Tyson Avenue is a 24-foot wide east-west roadway designed for two-way traffic and heavy vehicles. The corner of Tyson and Westshore meets the criteria for signalization, which would allow controlled turns from Tyson onto Westshore. Once northbound on Westshore, vehicles desiring to proceed in a westbound direction can turn left on Gandy Boulevard. Westshore Boulevard is approximately a half-mile long between Gandy and Tyson, has one north bound lane, one south bound lane, and a center lane. Northbound traffic on Westshore frequently backs up, even in the middle of the day, from Gandy Boulevard past McElroy, Paul and Price Avenues to as far south as Tyson Avenue. To address some of the congestion, the City has designed and budgeted for a dual left turn lane from Westshore onto Gandy Boulevard. The dual turn lanes will extend south of McElroy Avenue. The City has classified Westshore Boulevard as a failed roadway because it is unable to accommodate traffic volumes that currently exist. Consequently, the City denied the developer’s initial request to have Price Avenue be a gateway to the development as it would generate additional traffic entering directly onto Westshore Boulevard at an already congested point. Of the current side streets providing access to Westshore Boulevard between Gandy Boulevard and Tyson Avenue, Paul Avenue will not be extended to connect to the New Port parcel and Hendry Street (referred to as Bridge Street on Google maps) cannot provide public access as it is a private drive with lateral parking. As for McElroy Avenue, only southbound right turns will be allowed onto Westshore Boulevard due to the installation of the dual turn lanes for northbound traffic on Westshore Boulevard. Price Avenue will accommodate southbound traffic making right turns into and out of the New Port parcel, but spacing requirements prevent placement of a traffic signal at Price and Westshore, so northbound vehicles would have difficulty making a left turn onto Price Avenue. Furthermore, the proximity of Price Avenue to Tyson Avenue, and the near chronic congestion on Westshore Boulevard, would make a left turn leaving Price Avenue onto Westshore Boulevard exceptionally dangerous. Without the Crossing at Tyson Avenue, Price Avenue is expected to have a queue of 16.8 cars waiting to access Westshore Boulevard during peak morning hours, and a queue of 23.7 cars during peak afternoon hours. CSX contends that an entry point, identified as Retail Drive, to the New Port parcel could be an alternative route instead of the connection at Bridge Street and Tyson. Retail Drive connects to Westshore Boulevard at the southeastern portion of the New Port parcel. New Port is under contract to develop a 12-acre parcel at that location as a multi-family apartment complex. To access the apartment complex, the plans contemplate Retail Drive as a gated, private driveway connected to Westshore Boulevard. Due to spacing requirements, traffic signals could not be constructed at both the intersections of Westshore Boulevard and Retail Drive and Westshore Boulevard and Tyson Avenue. Tyson Avenue has already met the requirements for a traffic signal at the Westshore Boulevard intersection and is preferred by the City for signalization because it would serve all of the traffic on Rattlesnake Point, instead of a single development. Absent a traffic signal, vehicles leaving Retail Drive are only permitted to make a right turn to head south on Westshore Boulevard. As only ten percent of the traffic leaving the New Port development is expected to travel south, Retail Drive, if reconstructed as a through road, would not provide an acceptable alternative route for traffic leaving the New Port development. The Bridge Street extension over the Henry Spur is essential to the City’s plan for redevelopment of the New Port development. The Bridge Street extension provides a north-south corridor parallel to Westshore Boulevard that allows traffic to enter onto Gandy Boulevard to the north and Tyson Boulevard to the south. CSX agreed to the Crossing in 2007, but now objects and contends that the situation has changed. Specifically, CSX contends that the amount of rail traffic has increased from an estimated five train movements per week to an estimated ten train movements per week. The trains are still of short duration, with crossings taking approximately a minute and one-half, twice a night, four or five times a week. CSX also indicates it has felt increased pressure from the Federal Railroad Administration (FRA) to decrease its overall number of crossings in Florida. CSX has not approached FRA for its position on allowing this particular crossing to open, and the related offset of the closing of four CSX crossings. CSX expressed concern that they could be subject to FRA fines if the number of crossings is not reduced, but offered no credible evidence in support of this contention.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order approving the opening of a public railroad-highway grade crossing at Bridge Street and Tyson Avenue in Hillsborough County, Florida. DONE AND ENTERED this 22nd day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2016.
Findings Of Fact The parties to this proceeding stipulated to the existence of three cases presently pending before the Division of Administrative Hearings in which the Department of Transportation seeks to enforce the challenged rules against Petitioner. As such, the Department of Transportation has conceded that Petitioner herein is "substantially affected" so as to clothe it with standing to maintain this rule challenge proceeding. On January 27, 1972, the Governor of the State of Florida entered into an agreement with the United States of America, represented by the United States Department of Transportation and the Federal Highway Administration. That agreement contained certain restrictions on outdoor advertising signs near controlled interchanges, and is now commonly referred to as the "Interchange Rule." That rule is now contained in Rule 14-10.09(2), Florida Administrative Code.' The agreement contained in Rule 14-10.09(2), Florida Administrative Code, was ratified by the Florida Senate in Concurrent Resolution No. 657.
The Issue What is the proper classification of the portion of road located in southern Okaloosa and Walton Counties formerly designated as part of U.S. Highway 98?
Findings Of Fact U.S. Highway 98 runs in an east-west direction through the southern portion of Okaloosa and Walton Counties. A new portion of highway connecting with U.S. Highway 98 in Walton County in east and in Okaloosa County in the west was constructed (hereinafter referred to as "New Highway 98"). This new highway was available for use in May, 1956. New Highway 95 was constructed with the intention of re-routing U.S. Highway 95 along the new portion of highway. The American Association of State Highway Officials approves the designation of U.S. Highway routes. Reclassification of New Highway 95 began in April or May, 1956. Relocation of U.S. Highway 95 to New Highway 95 was approved on November 5, 1956. New Highway 95 replaced a portion of U.S. Highway 95 located in Okaloosa and Walton Counties (hereinafter referred to as "Old Highway 95"). Old Highway 95 is approximately 7.2 miles in length. Old Highway 90 connects at intersections with U.S. Highway 98 in the east in Walton County and with U.S. Highway 98 in the west in Okaloosa County. U.S. Highway 90 is a principal arterial road and is part of the State road system. The portion of Old Highway 98 located in Okaloosa County is entirely within the corporate limits of the City of Destin. The City of Destin was incorporated on November 6, 1984. The City of Destin has a population of more than 1,000 and less than 5,000. It has been designated as a "census designated place" by the United States Bureau of Census. The City of Destin has also been designated as a part of the Fort Walton Beach "urbanized area" by the United States Bureau of Census. The population of the Fort Walton Beach urbanized area is more than 50,000. The City of Destin's urban boundary coincides with the Okaloosa-Walton County line where Old Highway 98 crosses the Okaloosa-Walton County line. There are no incorporated areas or "census designated places" along the portion of Old Highway 98 in Walton County. The portion of Old Highway 90 located in Walton County has not been designated as an urbanized area by the United States Bureau of Census. There are several settlements -- Miramar Beach, Seascape and Tang-o- Mar Beach -- along the portion of Old Highway 98 in Walton County. These settlements have not been designated as places by the United States Bureau of Census. Due to construction of New Highway 98, the Department began a reclassification review of Old Highway 98. As part of the reclassification review, the Department placed traffic counters at appropriate locations along Old Highway 98. A traffic count was conducted during a 24-hour period on May 22 and 23, 1986. The Department determined that Old Highway 98 constituted a road within "rural element number 11" on Table Number 4, System Elements, Definitions, Typical Functional Classification, and Coefficients, Chapter 14-12, Florida Administrative Code. The Department applied the Minimum Attribute Levels for Rural Functional Models, Rural Arterial, of Table Number 1, Chapter 14-12, Florida Administrative Code, to rural element 11. Old Highway 95 was allocated one point for the traffic factor, trucks, network factor and access factor attributes of Table Number 1, Rural Arterial. No score was awarded for the extent of road (miles) or mobility attributes. Based upon this application, the Department determined that Old Highway 95 was not a rural arterial road. The Department then applied the Minimum Attribute Levels for Rural Functional Models, Rural Collector, of Table Number 1, Chapter 14-12, Florida Administrative Code, to rural element 11. As a rural collector road, Old Highway 95 was allocated one point for all of the attributes except the intersection attribute. Based upon this application, the Department determined that Old Highway 95 was a rural collector road. The Department published notice of public hearings in the Destin Log. Notice of a public hearing conducted at the Bay Elementary School, Point Washington, Walton County, Florida, on June 5, 1956, was published on May 21, 1956. Notice of a public hearing conducted at the Community Center, Destin, Okaloosa County, Florida, on June 17, 1986, was published on May 31, 1956. Notice of the public hearings of June 5 and 17, 1956, were also published in the Florida Administrative Weekly. The notices of the public hearings were published before the traffic count conducted by the Department was completed. The traffic count was conducted, however, before the public hearings were held. The Destin Log, which is located in Okaloosa County, is published twice weekly and is available to the public in Okaloosa and Walton Counties. The Destin Log has a circulation of 1,653 in southern Walton County and 200 in northern Walton County. Walton County's population is approximately 21,300. Input received at the two public hearings was considered by the Department in reclassifying Old Highway 98. Notice of Intent dated July 1, 1986, was provided by the Department to the Chairperson of the Okaloosa and Walton County Commissions that the Department intended to reclassify Old Highway 98 as a collector road and transfer the portions of Old Highway 98 located in Okaloosa and Walton Counties from that State highway system to the counties. The City of Destin was not provided with written notice of intent. In response to the Notice of Intent, Walton County timely filed a Petition for Formal Administrative Hearing. Okaloosa County did not protest the proposed reclassification of Old Highway 98 located in Okaloosa County. The City of Destin did challenge the proposed reclassification of Old Highway 98 located in Okaloosa County. M.T. and Amelia B. Fountain granted the State of Florida a 100-foot segment of right-of-way along Old Highway 98 in Walton County. The Deed contains a reverter clause providing that the property will be returned to the Fountains if the road ceases to be used or maintained as a state or federal highway. The portion of Old Highway 98 located in Okaloosa County was resurfaced in 1982. The portion of Old Highway 98 located in Walton County was resurfaced in 1984. The physical condition of Old Highway 98 is the same or better than the condition of like roads in Okaloosa and Walton Counties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order functionally classifying Old Highway 98 as a major collector road and transferring the portion of Old Highway 98 located in Okaloosa County to the Okaloosa County road system and the portion of Old Highway 98 located in Walton County to the Walton County road system. DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1987. APPENDIX Case Numbers 86-3287 and 86-4555 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. City of Destin's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 1 and 7-8. 3 9. 4 23. 5 13. 6 5. 7 8. 9 Hereby accepted. 10-12 Irrelevant. The road to be reviewed in these cases is Old Highway 98 and not U.S. Highway 98. Whether U.S. Highway 98 constitutes a "transportation corridor" is therefore irrelevant. Even though Old Highway 98 was a part of U.S. Highway 98 at the time of the Department's initial evaluation, at the time of this de novo proceeding Old Highway 98 was no longer a part of U.S. Highway 98. 13-15 16. 16 15. 17 18 Not supported by the weight of the evidence. Old Highway 98 does not travel "around" the City of Destin. 19 1. 20 20. Walton County's Proposed Findings of Fact 1 1 and 7-8. 2 23. 3 13. 4 5. 5 8. 6 24. 7-9 Irrelevant. See the discussion of the City of Destin's proposed findings of fact 10-12. 10-12 16. 13 15. 14-15 1. 16 20. 17-18 21. 19-20 Irrelevant. With regard to proposed finding of fact 19, see the discussion of this issue under Conclusions of Law. As to the proposed finding of fact 20, the United States Bureau of Census population figures were used during the final hearing of these cases. Not supported by the weight of the evidence. Irrelevant. 23 26. The Department's Proposed Findings of Fact 1 2, 7-8, 13-14 and 16-17. 2 18-19 and 21-22. 3 9 and 23-25. 4 10-12 and 26. 5 27-28. COPIES FURNISHED: Kaye N. Henderson, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, Mail Station 58 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Joseph D. Lorenz, Esquire ETHEREDOE, MILLER, LORENZ LUNGSTRUM AND HEFLIN, P.A. 226 Troy Street, NE Fort Walton Beach, Florida 32548 George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 =================================================================
The Issue The ultimate issue is whether Sarasota County's comprehensive plan amendments adopted by Ordinance No. 2007-64 (Plan Amendments), as amended by remedial plan amendments adopted by Ordinance No. 2008-33 (Remedial Plan Amendments), are in compliance, as provided by Section 163.3184(1)(b), Florida Statutes, with respect to: 1) whether the county's designation of several segments of University Parkway as Level of Service (LOS) D for concurrency review, on the basis of a claim that the road is "constrained," is supported by data and analysis; 2) whether the supporting traffic analysis was conducted in a professionally acceptable manner; and 3) whether the identified transportation facilities are financially feasible.
Findings Of Fact Background Petitioner owns the Westfield Sarasota Square Mall in Sarasota County. The mall is located at U.S. Route 41 and Beneva Road. Petitioner timely submitted written and oral comments to the Plan Amendments and Remedial Plan Amendments. Having purchased the property in July 2002, Intervenors are the developers of Sarasota Interstate Park of Commerce (SIPOC) in Sarasota County. The development is located at the southwest quadrant of the interchange of I-75 and University Parkway. The boundary between Sarasota and Manatee counties is somewhere within the right-of-way of University Parkway between I-75 on the east (or a point just east of I-75) and U.S. Route 301 on the west. University Parkway is an east-west arterial, multilane road that extends to the east of I-75 past a large multiuse development in Manatee County known as Lakewood Ranches. To the west, University Parkway extends past the Sarasota airport to its terminus at U.S. Route 41 in the vicinity of New College. Honore Avenue is a north-south road (at least it is in the vicinity of University Parkway) and is the first road west of SIPOC. The first road south of SIPOC, DeSoto Road is an east-west road terminating just west of I-75 on the east and a short distance west of Honore Avenue on the west. Cattlemen Road is a major north-south road that runs just west of I-75 and crosses two roads with I-75 interchanges to the south of the University Parkway interchange: Fruitville Road and Bee Ridge Road. Until SIPOC, the northern end of Cattlemen Road was south of University Parkway. However, Intervenors are constructing North Cattlemen Road from University Parkway to the north (directly across from the point at which Cooper Creek Boulevard terminates at University Parkway), past DeSoto Road, to Richardson Road, which is the northern terminus of Cattlemen Road at present. Richardson Road is just north of Fruitville Road. On July 27, 1993, Sarasota County issued a development order (DO) for a development of regional impact for SIPOC. Pursuant to the DO, the approved use for SIPOC Phase I was 633,888 square feet of retail, and the approved uses for SIPOC Phase II were 215,210 square feet of retail, 547,488 square feet of light industrial, 240,982 square feet of office, 500 hotel rooms, and 750 multifamily dwelling units. Phase I of SIPOC is substantially complete and has resulted in the construction of a SuperTarget at the site. This case involves the development that will constitute Phase II of the SIPOC. On July 10, 2007, at the request of Intervenors, Sarasota County adopted two ordinances concerning SIPOC: Ordinance No. 2006[sic]-80 and Ordinance No. 2007-64. Ordinance No. 2006-80 amends the SIPOC DO to approve the following uses: 1,680,000 square feet of retail, 220,000 square feet of office, 500 hotel rooms, and 1750 multifamily dwelling units (Amended DO). The Amended DO, which was never challenged, is effective on the date that the Plan Amendments described in Ordinance No. 2007-64 are found in compliance. The buildout date of the Amended DO is December 31, 2009. For Phase II, the traffic impact intensities may not exceed 6405 gross p.m. peak hour trip ends or 3795 net new p.m. peak hour trip ends. Amended DO, p. B-6. The Master Development Plan depicts the proposed development, which fronts onto University Parkway, as divided into eastern and western sections by proposed North Cattlemen Road (and a 330-wide FPL transmission easement alongside the east side of North Cattlemen Road). From north to south, on the west side of the road and transmission line are commercial/office, commercial/residential, residential, and a conservation easement in the back of the parcel. On the east side of the road and transmission line are commercial/residential/office, residential, and a large stormwater management easement in the back of the parcel. Amended DO Condition H addresses transportation. Condition H.1 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase I or II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.1 states: No Construction Plan approval shall be issued for any SIPOC Phase I or II development until such time as contracts for construction of the following improvements have been executed, and no Certificate of Occupancy nor temporary Certificate of Occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at North Cattlemen Road intersection, including the following turn lane additions: One eastbound right turn lane for a total of one; One westbound left turn lane for a total of two; Two northbound left turn lanes for a total of two; Two northbound through lanes for a total of two; and Two northbound right turn lanes for a total of two. Construction of a northbound right turn lane at the Honore Avenue/DeSoto Road intersection. Construction of DeSoto Road as a divided two lane arterial from Honore Avenue to North Cattlemen Road. Construction of North Cattlemen Road as a divided four lane roadway from University Parkway to DeSoto Road. These improvements have been identified as being required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements, except the County shall assist in the acquisition of required right-of-way not under the ownership or control of the Applicant, provided that the Applicant shall be responsible for the expense thereof (except as otherwise set forth in agreements between the County and the Applicant). Amended DO, p. B-19. Amended DO Condition H.2 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.2 states: Construction Plan approvals shall not be issued for any SIPOC Phase II development until such time as contracts for the construction of the following improvements have been executed, and no certificate of occupancy nor temporary certificate of occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at Honore Avenue intersection including the following turn additions: one northbound left turn lane for a total of two; one westbound left turn lane for a total of two; one northbound through lane for a total of two; and one northbound right turn lane for a total of one, prior to 40 percent of the DRI buildout (1518 net new p.m. peak hour trips). Construction of the University Parkway at Cooper Creek Boulevard/North Cattlemen Road intersection including the following lane additions and/or modifications: reconfiguration of the inside northbound through lane to a left turn lane for a total of three; one southbound through lane for a total of one; one southbound right turn lane for a total of one prior to 60 percent of the DRI buildout (2277 net new p.m. peak hour trips). Construction of a northbound left turn lane at the University Parkway at I-75 East Ramps intersection for a total of three prior to 50 percent of the DRI buildout or 1898 net new p.m. peak hour trips. Signalization of Honore Avenue at DeSoto Road intersection when signal warrants are met. Construction of a roundabout at the North Cattlemen Road at DeSoto Road intersection. Construction of North Cattlemen Road as a divided four lane roadway from DeSoto Road to Richardson Road. Construction of Fruitville Road at Cattlemen Road intersection including the following lane additions: one northbound through lane for a total of two; one northbound left turn lane for a total of two; one southbound through lane for a total of two; one eastbound left turn lane for a total of two; one eastbound through lane for a total of four; and one westbound left lane for a total of two. Construction of Cattlemen Road at the North Access Driveway intersection including the following traffic control type and lane additions: Signalization of the intersection; One northbound left turn lane for a total of one; Two northbound through lanes for a total of two; One northbound through/right turn lane for a total of one; Two southbound left turn lanes for a total of two; Two southbound through lanes for a total of two; One southbound right turn lane for a total of one; Two eastbound left turn lane [sic] for a total of two; One eastbound through/right lane for a total of one; Two westbound left turn lane [sic] for a total of two; One westbound through lane for a total of one and; Two westbound right turn lanes for a total of two. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. These improvements have been identified as required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements. Amended DO, pp. B-19 to B-21. Amended DO Condition H.4 states: Sarasota County acknowledges that with the construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new pm, peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless Funding Commitments for the improvement(s) required to maintain the adopted [LOS] have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOS]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Sarasota County acknowledges that with construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new p.m. peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in the [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless the Funding Commitments for the improvement(s) required to maintain the adopted [LOS](s) have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOSs]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Amended DO, pp. B-22 to B-23. Amended DO Condition H.4.c identifies 21 intersections and one road segment (I-75 southbound from University Parkway to Fruitville Road) that shall be monitored during the capacity reservation period. Condition H.4.c provides: If in the Annual Traffic Monitoring Report, the [LOS] on any of the intersections or intersection approaches fall [sic] below the adopted [LOS], no further site and development plan approval shall be issued unless the required improvement(s) are made by the [Intervenors], or Funding Commitments for the improvement(s) have been provided by the [Intervenors], another private person, or a responsible entity. . . . Amended DO Condition H.4.c identifies, by road segment, the number of equivalent p.m. peak hour trips to be reserved during that period. The Amended DO defines the capacity reservation period as the period commencing with the effective date of the Amended DO and ending with the earlier of December 31, 2009, or the point at which cumulative SIPOC development, for which development orders have been issued, generates more than 6405 gross p.m. peak hour trip ends or more than 3795 net new p.m. peak hour trip ends. Amended DO Condition H.5 requires Intervenors to establish an annual traffic monitoring program, which is "to monitor the cumulative impacts of the development on the roadways, intersections, and intersection approaches in the traffic impact area." This report is also used for traffic impact and concurrency evaluation purposes for any SIPOC development submitted to Sarasota County after the expiration of the Facility Reservation Period. Amended DO, p. B-26. Amended DO Condition H.6 provides: Development Order applications, including Final Development Order applications, for any portion of the development submitted during the annual concurrency evaluation period in effect for a given monitoring report, shall not be approved if the annual concurrency evaluation contained in that report indicates that traffic resulting from the approval of said Development Order will impact any road, intersection, or intersection approach in the traffic impact area that is operating (or projected to operate) below the adopted [LOS] for that facility. Notwithstanding the above, a Development Order application may be approved if one of the following mitigative actions, or both in combination, are committed to by the [Intervenors] (as a condition of approval for that Development Order), or, by another responsible entity: Other traffic impact reduction measures are implemented, including but not limited to transportation system management (TSM) strategies, intended to eliminate the impact of the SIPOC development traffic on the deficiently operating facility(ies) . . . [or] Funding Commitments, as defined in Conditions A.11.a.i-iii, are provided for the improvement(s) necessary to eliminate the [LOS] deficiency on the road(s) and/or intersection(s) by the SIPOC DRI development. Amended DO, p. B-27. Amended DO Condition A.11 defines "Funding Commitments" as follows: "Funding Commitments" shall mean the fulfillment of an action necessary to ensure the completion of any road or intersection improvement required by this [Amended DO] or identified in any subsequent Annual Traffic Monitoring Report prior to the time the impacts from the development occur. These actions include one or any combination of the following: The provision of a binding commitment by a private person or responsible entity . . . for the design, engineering, and actual construction of the improvement to be completed when the improvement is identified as being necessary in the approved Annual Traffic Monitoring Report as required in this [Amended DO]; or A commitment for actual construction and completion of the improvement pursuant to an approved Developer Agreement; or For the purpose of reviewing a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement in the current i.e., first year of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or The placement of the construction phase for an improvement in the current i.e., first year of Manatee County's adopted Capital Improvement Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of Manatee County; or The placement of the construction phase for an improvement in the current i.e., first year of the [DOT]'s adopted 5-Year Work Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of [DOT]. Amended DO, p. B-3. Funding Amended DO Condition A.11.IV.iv adds: For the purposes of reviewing a development order that is not a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement within the first five years of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or, The placement of the construction phase for an improvement within the first five years of Manatee County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Manatee County; or, The placement of the construction phase for an improvement within the first five years of the Florida Department of Transportation's . . . adopted 5-Year Work Program for roads and intersections under the jurisdiction of [the Florida Department of Transportation]. Amended DO, pp. B-3 to B-4. By Ordinance No. 2007-64, Sarasota County adopted the Plan Amendments changing the FLUM designations on SIPOC. After DCA found the Plan Amendments not in compliance, by Ordinance No. 2008-33, Sarasota County adopted the Remedial Plan Amendments. The procedural history of the Plan Amendments and Remedial Plan Amendments is set forth in the Preliminary Statement and incorporated by reference. It is important to note that the Cumulative Plan Amendments apply exclusively to SIPOC. The Remedial Plan Amendments add a new paragraph to the Transportation chapter of the Sarasota County comprehensive plan. With the existing, unchanged language in the first paragraph and the new language in the second paragraph, this part of the Transportation chapter now reads: Although the [LOS] standard . . . provides an overall goal toward which the County can strive, the adoption of a[n LOS] as high as "C" peak hour, based on a 100th highest hour design criteria, for constrained and backlogged roadways would not be environmentally or financially feasible. Constrained County roadways are defined as exhibiting a[n LOS] lower than the adopted standard and not being able to attain the adopted standard because prohibitive costs or environmental limitations prevent the construction of at least two additional through lanes. Backlogged County roadways are defined as roadways operating below the adopted standard which do not have prohibitive financial or environmental constraints but are not scheduled for major capacity improvement in the County's Five Year Schedule of Capital Improvements. Thus, the LOS for constrained roadways, i.e. prohibited due to physical or other policy limitations or backlogged roadways, i.e. currently un-funded in the 5-Year Schedule of Capital Improvements, is to maintain the current [LOS] with minimum degradation. Between U.S. 301 and I-75, University Parkway lies along the Manatee/Sarasota County line. The generalized [LOS] data of Table 6-2 shows University Parkway between U.S. 301 and I-75 to have been operating at . . . LOS D in 2003. University Parkway has been constructed as a six-lane divided arterial roadway and is not planned to be widened to include additional general purpose lanes. Also, University Parkway has an adopted LOS "D" for purpose of evaluating transportation concurrency in Manatee County and absent any indication to the contrary would have an adopted LOS "C" for Sarasota County concurrency purposes. To resolve this discrepancy, to acknowledge current operating conditions, and based on the interlocal agreement with Manatee County regarding access control and maintenance responsibilities for University Parkway, Sarasota County considers the adopted LOS on University Parkway to be "D" for evaluating transportation concurrency. Therefore, University Parkway has been included in "Table 6-5: Designated Backlogged and Constrained Roadways in Sarasota County" as constrained at LOS D. Ordinance No. 2008-33, Section 2. Presumably, the "current conditions" on University Parkway to which the above-cited language refers is to 2008 because, as noted in the following section, the 2006 directional peak hour volumes of the University Parkway segments west of I-75 were all LOS B, except for five such segments at LOS C. In any event, the Remedial Plan Amendments add seven segments of University Parkway from I-75 to a point west of the SIPOC, but east of U.S. Route 301, as "constrained" with an LOS D. Ordinance No. 2008-33, Section 3. The Remedial Plan Amendments provide that the SIPOC is in Special Planning Area #1--a new FLUM designation. They add: The [SIPOC DRI] Substantial Deviation Application for Development Approval (ADA) serves as supporting data and analysis for the area identified on the . . . FLUM as the SIPOC DRI--Special Planning Area 1. As required, the SIPOC DRI ADA is a comprehensive analysis of the suitability of the area for the development as well as the proposed impacts of the project. This DRI analysis can be used by Sarasota County to guide the timing, location, type and amount of future development. Thus, the Application for Development Approval, sufficiency responses and [Amended DO] provide supporting data and analysis for the land use designation on the FLUM. Ordinance No. 2008-33, Section 4. The Remedial Plan Amendments amend the future land use element of the Sarasota County comprehensive plan to incorporate the above-described density and intensity limits, as well as hotel rooms and dwelling units, identified above in the Amended DO. Ordinance No. 2008-33, Section 6. The Remedial Plan Amendments identify a new Five-Year Schedule of Capital Improvements, Table 10-3, which is obviously limited to SIPOC. For traffic circulation, the new capital improvement schedule provides (all costs are in millions'): Project Pre-2008 2008 2009 2010 2011 Future Total Add DeSoto Rd. 2.27 2.5 0.27 0.27 0.15 0 5.5 Add N. Cattle man Rd.- 5.0 Richardson Rd. 0 5.0 21.0 6.3 2.5 39.0 Add University Pkwy./Honore 0 0 0 0 0 0 0 Ave. Inter- section Add University Pkwy. Northbound 0 0 0 0 0 0 0 Off-ramp [to I-75] Ordinance No. 2008-33, Section 9. The Remedial Plan Amendments further identify Special Planning Area 1 as follows: Special Planning Area 1 is the . . . SIPOC DRI. The Substantial Deviation Application for Development Approval (ADA) provides data and analysis regarding its significant and adverse impacts to local and regional roadways. [Intervenors], in coordination with Sarasota County, ha[ve] committed to provide funding and right-of-way as needed from the DRI property to mitigate for the improvements required to maintain the adopted [LOS] on area roadways . . . resulting from the impacts of the SIPOC DRI. The required improvements to the roadway system . . . are provided in the [Amended DO] and summarized as follows: Improvements to the roadway included in the County's Five-Year Capital Improvements Program (CIP) are as follows: North Cattlemen Road from Richardson Road to University Parkway. This project has been programmed in the CIP in the amount of $39,907,103 . . .. DeSoto Road from Harold Avenue to North Cattlemen Road. This project has been programmed in the CIP in the amount of $5,462,227 . . .. Improvements to the intersection of University Parkway and Honore Avenue. This project will be funded by [Intervenors]. The current construction estimate is $2,250,000 . . .. Improvements to the northbound exit ramp of I-75. This project will be funded by [Intervenors]. The current construction estimate is $2,000,000 . . .. A public transit transfer facility station will be designed, permitted and constructed by [Intervenors] and will be designed to accommodate a minimum of four buses and will be constructed at such time as Sarasota County Area Transit establishes service to the development. The estimated cost is $300,000 . . .. Ordinance No. 2008-33, Section 10. The Remedial Plan Amendments become effective when DCA enters a final order finding them to be in compliance. Ordinance No. 2008-33, Section 14. Whether Adoption of LOS D for University Parkway Is Supported by Data and Analysis The present record is devoid of evidence that any of these segments of University Parkway are constrained. Nothing in the record suggests that the constraints of prohibitive costs or significant natural resources preclude the widening of University Parkway. By definition, these segments of University Parkway were backlogged, prior to the reduction in their LOS standard to D, as they were operating below their adopted LOS standard of C and were omitted from the five-year capital improvement schedule for capacity enhancement sufficient to restore a C LOS standard. Backlogged segments remain deficient and are to be maintained so as to minimize further degradation. Of course, by reducing the LOS standard to the actual LOS--D--Sarasota County relieves these University Parkway segments of their backlogged status. Instead, the clear intent of the county was to reduce the LOS standard of these segments, not to treat them and their failure to attain LOS C as special cases. The second of the cited paragraphs above essentially designates these segments of University Parkway as LOS D, not because they are constrained or were (prior to the new designation) backlogged, but because: 1) Manatee County designates the same segments as LOS D, 2) the segments are operating at LOS D, and 3) Manatee County is unlikely to share the cost of enhancing the capacity of these segments when they are operating at their (Manatee-County) adopted LOS standard. Sarasota County's proposed recommended order, at paragraph 19, candidly concedes these points. Without regard to Sarasota County's confusing attempt to designate the University Parkway segments as constrained or backlogged, the three cited reasons for lowering the LOS standard to D for these segments of University Parkway are data and analysis supporting the action taken by Sarasota County. Petitioner has failed to prove to the exclusion of fair debate that the designation of the affected University Parkway segments as LOS D is not consistent with the criterion of supporting data and analysis. Whether Supporting Traffic Data Are Appropriate and Traffic Data Were Collected and Applied in a Professionally Acceptable Manner Kimley-Horn and Associates, Inc., (KH) performed the traffic analysis in connection with the Amended DO and Cumulative Plan Amendments. In November 2005, KH prepared a Transportation Methodology Statement (TMS) for use in conjunction with the SIPOC Phase II DRI Substantial Deviation (from the DO). The TMS briefly describes Phase II of the SIPOC development. The TMS slightly overstates, by percentage, retail uses by 120,000 square feet (using 1,800,000 square feet, rather than 1,680,000 square feet) and substantially understates, by percentage, office uses by 120,000 square feet (using 100,000 square feet, rather than 220,000 square feet), but, obviously, the total of the two uses is the same as the total stated in the Amended DO. The TMS states that KH will use the trip generation rates published by the Institute of Transportation Engineers, Trip Generation, 7th Edition, 2003. The TMS notes that hotel trips require a different source due to their exclusion from Trip Generation. The TMS states that KH will determine trip "general trip distribution of project traffic" by "application of the Florida Standard Urban Transportation Model Structure" (FSUTMS), which is a transportation planning model. The TMS states that KH will use FSUTMS for "project distribution" and "general assignment of project traffic to the roadway network." Trips are first distributed between attractor land uses and producer land uses and then are assigned to specific facilities. Thus, it is necessary to distribute trips between SIPOC and various offsite locations and, using this information, to assign traffic to the roadway network in the vicinity of the attractors. The TMS adds: In addition to [FSUTMS], existing traffic patterns adjacent to the project site, including the location of production- and attraction-based land uses, will be used as supplement data to estimate project traffic assignment. A copy of the distribution and electronic files of the input files to be used in this model will be provided in the analysis report to the appropriate review agencies. The TMS states that, in distributing project traffic, KH will use the existing roadway network plus committed improvements in the first three years of Manatee County's current capital improvement program, Sarasota County's current capital improvement program, and Florida Department of Transportation's (DOT's) Work Program. The TMS states that KH will obtain the necessary socio-economic projections for the buildout year of 2009 from the Sarasota/Manatee Area Transportation Study and will supplement these data to include certain other approved DRIs, which are listed. The TMS states that the analysis report will summarize the socio-economic adjustments. The TMS states that KH will estimate internal capture and pass-by capture of project traffic based on the review of FSUTMS in Trip Generation, 2nd Edition, June 2004--as well as other ITE-related documents and engineering judgment applied to the characteristics of SIPOC, Phase II. Internal capture is a function of mixed-use developments, such as SIPOC, in which persons using the retail, office, or residential components of the single development remain within the development, rather than enter the roadways surrounding the development. Pass-by capture describes the function of a development interrupting a trip on the surrounding roadway system and later releasing the trip back onto the surrounding roadway system. The TMS adds that the total pass-by capture trips will be estimated for the retail part of SIPOC, Phase II, and will be limited to 10 percent of the future background traffic estimates adjacent to the project site. The TMS adds that KH will document all assumptions and applied procedures in the analysis report. The resulting reduction in internal capture and pass-by capture trips will, according to the TMS, produce net, new trips, which KH will use to identify the transportation impact study area. The TMS states that KH will review the impacts of project traffic on the adjacent roadway network following the requirements of Section 380.06, Florida Statutes, and Florida Administrative Code Rule 9J-2.045, which are consistent with the rules of DCA. Relying on the procedures used in the Phase I transportation analysis, which had been recently approved, KH will then identify the study area as "all roadway segments for which SIPOC net, new project traffic will consume 5.0 percent or greater of the . . . LOS C directional, peak-hour service volume of each affected roadway link located within Sarasota County, including University Parkway and I-75." For roadways in Manatee County, excluding I-75, the LOS will be D. The TMS states that peak-hour service volumes will be estimated based on the most recent information available from DOT and the Transportation Research Board, Highway Capacity Manual, 2000 Edition. In particular, the TMS notes that KH will use four- lane, divided capacity for North Cattlemen Road from University Parkway to DeSoto Road and two-lane, divided capacity for North Cattlemen Road from DeSoto Road to Richardson Road and DeSoto Road from Honore Avenue to North Cattlemen Road. The TMS adds that KH will use six-lane, divided capacity for University Parkway from I-75 to Lakewood Ranch Boulevard to the east and the proposed ramp improvements to the University Parkway/I-75 interchange. The TMS identifies the LOS standards of various road segments surrounding SIPOC, including LOS D for University Parkway from U.S. Route 301 to Lakewood Ranch Boulevard. (University Parkway east of I-75 is entirely in Manatee County.) The TMS identifies the analysis period as the p.m., peak season, peak hour for both existing and future conditions. For the existing condition, Intervenors shall obtain recent traffic count data. The TMS notes that KH will forecast future nondevelopment (background) traffic for the buildout year of 2009, using the results of the FSUTMS model, forecasted traffic projections from public agencies, and actual historical traffic counts from the study area. Comparing the FSUTMS outputs for 2005 and 2009, KH will determine the appropriate growth rates for specific roadways within the study area. By applying those growth rates to the existing traffic data, KH will determine future background traffic volumes. The TMS states that the analysis report will contain complete documentation of all assumptions and applied procedures. The TMS states that KH will perform roadway link capacity analysis for all regionally significant roadways and any subregional roadways in the study network that provide primary access to SIPOC. The TMS identifies the sources of procedures for this analysis and assures that the analysis report will contain electronic files with the results of the roadway link capacity analysis. The TMS states that KH will assess project traffic for potential improvements where it contributes at least five percent of the appropriate LOS peak hour directional service volume of a regional roadway in the transportation impact study area. KH will identify improvements only when the roadway is expected to operate below its adopted LOS peak hour service volume. The analysis report will identify improvements attributed to SIPOC only if project traffic consumes at least five percent of the adopted LOS peak hour service volume or the "critical movements of the intersections located at the endpoints of an impacted roadway segment." The TMS states that KH will perform similar analyses of intersections in terms of their LOSs and need for improvements when operating below their adopted LOS standards. KH circulated the TMS among various agencies, including Sarasota County, DOT, and the Southwest Florida Regional Planning Council (RPC). None of these agencies offered any criticism of the proposed methodology. As part of their application for development approval that led to the Amended DO, Intervenors filed a Substantial Deviation from the SIPOC DRI. Part V of this document is Public Facilities, and Section A of Part V is Transportation. This Transportation Substantial Deviation document shall be referred to as the "TSD." At the time of the preparation of the TSD, Phase I of SIPOC was under construction, so KH combined the land uses and their associated traffic for both phases for the analysis contained in the TSD. KH based its analysis on 2009 projections because that is the year of buildout of Phase II. The TSD states that KH used current policies of Sarasota County and RPC to identify the transportation study area, which comprises the regionally significant roadway links, intersections, and interchanges on which Phases I and II project trips associated with SIPOC consume at least five percent of the adopted LOS. The TSD identifies the adopted LOS as C for each affected roadway link in Sarasota County, including University Parkway west of I-75 and I-75 in Sarasota and Manatee counties, and D for roadways in Manatee County. Evidently, at the time of the preparation of this part of the TSD, Sarasota County had not yet identified the need to lower the LOS for University Parkway to D. However, TSD Table 5.A.2 reports that the University Parkway segments west of I-75 have an adopted LOS D. University Parkway would obviously be in the transportation study area regardless whether KH has used a LOS standard of C or D for its segments west of I-75. The TSD states that KH used the existing roadways plus roadway improvements funded for construction for the first three years in the capital improvement programs of Sarasota and Manatee counties and the DOT Work Program, except that KH used five years of the DOT Work Program for construction of I-75 improvements. The TSD states that KH used ITE's, Trip Generation, 7th Edition (2003) to determine that SIPOC, through Phase II, would generate 68,894 daily trip ends and 6405 trip ends in the p.m., peak hour, consisting of 3148 inbound and 3257 outbound, as well as 2158 trip ends in the a.m. peak hour, consisting of 1143 inbound and 1015 outbound. The TSD states that KH used an internal capture rate of 33 percent and a pass-by capture rate of less than 10 percent of future background traffic. Subtracting the internal capture and pass-by capture rates from the total gross trips, TSD Table 5.A.5 reports that the total, net, new external project trips is 38,120 daily, including 1708 in and 1817 out during p.m. peak hour and 713 in and 585 out during a.m. peak hour. The TSD describes the process by which KH calculated 2009 total traffic, which consists of SIPOC traffic plus background (i.e., nonSIPOC) traffic. KH inputted into FSUTMS socioeconomic data provided by the Sarasota/Manatee County Metropolitan Planning Organization (MPO), supplemented by data from other approved DRIs in the area. The TSD details the process by which KH isolated the effects of SIPOC in projecting background traffic. For project traffic, the TSD states that KH used FSUTMS output to distribute trips and, with "minor refinements based upon existing and proposed attractive-type land uses near the project site," to develop roadway assignment percentages. TSD, p. 12. TSD Table 5.A.1 reports the LOS service volumes for road segments in the vicinity of SIPOC, the projected traffic assignment (expressed as a percentage of the LOS service volume) assigned to each road segment, and an indication whether the five-percent threshold has been met, so as to require the inclusion of the road segment in the transportation study area. The TSD states that KH also applied the percentages to the trip generation estimates, with an adjustment for background traffic, to determine projected traffic volumes through Phase II. A revised version of this table is in the Third Sufficiency Response. TSD Table 5.A.2 shows service volumes for existing roadways based on their adopted LOSs. For instance, all depicted University Parkway segments west of I-75 bear an LOS D, which produces a service volume of 2790. The service volume of 2790 is for peak hour conditions. Using p.m. peak hour traffic counts conducted by KH, Table 5.A.3 indicates the actual p.m. peak hour roadway volumes for 2006, divided by direction. For the University Parkway segments west of I-75, the existing volumes are all at least 400 trips below 2790, so as to earn LOS Bs for all segments, except five, which are at LOS C. In general, Table 5.A.3 reports that all road segments in the study area were within their adopted LOS standards for 2006, and Table 5.A.4 reports that all intersections in the study area were within their adopted LOS standards for 2006, as well. In projecting 2009 traffic volumes, the TSD describes the process undertaken by KH to determine the volume of Honore Avenue traffic that would be diverted to North Cattlemen Road, once the latter facility is constructed. KH also assigned a minimal amount of traffic to DeSoto Road between Honore Avenue and North Cattlemen Road to account for the use of this new facility by background traffic. For project traffic, KH made "minor adjustments," of the type noted above, in assigning traffic to road segments in the study area. Projecting 2009 conditions, TSD Table 5.A.6 shows the directional p.m. peak hour traffic volumes for the project, background, and total. For instance, eastbound and westbound, the University Parkway segment from North Cattlemen Road/Copper Creek Boulevard west to Honore Avenue will have project volumes of 436 and 463 trips, background volumes of 2725 and 2672 trips, and total volumes of 3161 and 3135 trips, which would exceed the LOS D volume of 2790 trips reported above in TSD Table 5.A.2. TSD Table 5.A.7 reports, by road segment, the ratio of project traffic to total traffic. On the segment discussed immediately above, the project will constitute about 14 percent of peak hour total traffic in both directions. On other segments, such as the North Cattlemen Road and DeSoto Road segments that will primarily serve SIPOC, peak hour project traffic will be about 80-90 percent of peak hour total traffic. The TSD states that KH identified a road segment as critical and in need of further analysis if the 2009 projections revealed that it was operating below its adopted LOS standard and project traffic consumed at least five percent of its adopted peak-hour directional LOS volume TSD Table 5.A.8 reports the result of the roadway analysis, which, with "detailed arterial analysis," finds all segments, including the above-mentioned Honore/Cooper Creek segment of University Parkway, to be operating in 2009 at their adopted LOS or better. However, despite the application of "detailed arterial analysis," Table 5.A.8 designates five of the University Parkway segments, including the Honore/Cooper Creek segment, and three segments of Honore Avenue as critical links. Each of these eight segments was designated a critical link in both directions. TSD Table 5.A.9 identifies the intersections in the study area and projects that five of them will, by 2009, fall below their adopted LOS standard. Table 5.A.9 includes recommended improvements to restore LOSs to adopted levels or better. For the intersections at Honore Avenue and DeSoto Road and North Cattlemen Road and DeSoto Road, the improvement is to add signals. For the intersections at University Parkway and Honore Avenue and University Parkway and North Cattlemen/Cooper Creek, the improvements are to add two new turn lanes at each intersection. For the intersection at University Parkway and the I-75 east ramps, the improvement is to construct a new turn or ramp lane. In connection with the DRI-approval process, Sarasota County and DOT issued comments and questions, which prompted Intervenors' engineering firm to file at least three sufficiency reports. In the First Sufficiency Report, the RPC noted that a four-year planning horizon (2005-09) was a relatively short timeframe for using FSUTMS, so KH needed to check outputs for "reasonableness." In the Second Sufficiency Report, KH had to justify to Sarasota County KH's detailed assumptions and conclusions, such as its internal capture rate of 33 percent for am peak hour and its refusal to use an annual growth rate in traffic on University Parkway east of I-75 of 15 percent (as suggested by the FSUTMS output). KH also had to respond to DOT comments by adding to a map trip distribution percentages to certain road segments and correcting some LOS levels used in certain of the TSD tables. In the Third Sufficiency Response Table 1, KH identified the recommended transportation improvements to be funded by Intervenors as follows: Roadway Improvement Timeframe Honore Ave. & Construct north- Phase I DeSoto Rd. bound (NB) right- turn lane. University Pkwy. Construct EB right- Phase I & W. Project Drive turn lane. University Pkwy. Construct 2 NB left- Phase I & N. Cattlemen Rd. turn lanes, 2 NB through lanes, 2 NB right-turn lanes, 1 EB right-turn lane, and 2 WB left-turn lanes. N. Cattlemen Rd. Construct 4-lane Phase I divided road from University Pkwy to DeSoto Rd. DeSoto Rd. Construct 2-lane Phase I divided road from Honore Ave. to N. Cattlemen Rd. University Pkwy. Construct 2nd NB left- Phase II & Honore Ave. turn lane and 2nd WB left-turn lane. Con- vert NB right-turn lane to through lane and construct new NB right-turn lane. University Pkwy. & Convert SB right-turn Phase II Cooper Creek Blvd./ lane to through lane N. Cattlemen Rd. and construct new SB right-turn lane. University Pkwy. Construct 3rd NB Phase II & I-75 E ramps left-turn lane. Honore Ave. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Construct 2-lane Phase II divided or possibly 4-lane divided from DeSoto Rd. to Richardson Rd. The reviewing agencies ultimately approved the KH transportation analysis, but Petitioner claims that the transportation analysis was not professionally acceptable. Even Petitioner's witnesses offered no objection to the capture rates and traffic volumes used by KH. The thrust of Petitioner's objections to the traffic analysis is not to the inputs or model, but to the manual adjustments that KH made to the model outputs when assigning traffic to specific road segments. Some of these adjustments resulted in the removal of certain road segments from the transportation study area and thus from further analysis of the adverse impacts from SIPOC. The KH employee responsible for this project, Robert Agrusa, has 23 years' experience performing traffic studies and 20 years' experience using FSUTMS. Mr. Agrusa has worked in the Sarasota area nearly exclusively for over 15 years and has worked on the traffic impacts of DRIs. FSUTMS is a model whose original purpose was to assist long-range transportation planning, thus the comment by the RPC reviewer for the need to use care in using FSUTMS for the relatively short timeframe involved in this exercise. The model's sensitivity is limited as to attractive land uses near the subject project. For instance, the model fails to differentiate between a convenience store and a regional shopping mall; both are simply retail land uses. The engineer using FSUTMS for the purpose for which it was used in this planning exercise must examine the outputs carefully, compare them to existing and future land uses, and adjust the model- generated trip assignments based on his or her professional judgment. According to a Sarasota County transportation engineer, adjustments to FSUTMS output are more common in the I-75 corridor where the model's traffic analysis zones are less precise. Other authorities likewise support manual adjustments to model outputs. Among the manual adjustments described by Mr. Agrusa was an increase in the number of trips absorbed by large residential areas west of SIPOC, both north and south of University Parkway. These areas include 3000-4000 dwelling units that, in his professional judgment, were inadequately weighed by FSUTMS in distributing trips. For similar reasons, Mr. Agrusa made a similar adjustment in assignments in the area south of University Parkway and north of Fruitville Road, where even more dwelling units are located. Another manual adjustment described by Mr. Agrusa illustrates well the issue raised by Petitioner. Mr. Agrusa increased the trips on I-75, north and south of University Parkway, to reflect the regional draw of SIPOC, especially its retail uses. No transportation engineer in this case disagrees that SIPOC is a regional draw. An increase in I-75 trips means a corresponding decrease of trips on University Parkway, Honore Avenue, and North Cattlemen Road. However, the magnitude of such changes was typically limited to 2-3 percentage points, and each percentage point of net new trips is only 40 two-way trips or 80 one-way trips. As Petitioner contends, small changes can result in large effects. Mr. Agrusa raised the percentage of project trips on I-75 south of University Parkway from nine percent to 12 percent. As already noted, this would lighten the projected traffic on other segments, especially North Cattlemen Road and Honore Avenue. By raising the percentage only to 12, though, Mr. Agrusa did not cause the burdened interstate segment to have to be included in the study area because, at 12 percent, the project contributed 4.99 percent of this segment's volume. Had Mr. Agrusa raised the percentage to 12.5 percent, the five percent threshold would have been met, and this segment of I-75 would have had to have been included in the study area. But Mr. Agrusa testified that he did not restrict this increase to lower the volumes on road segments already in the study area and raise it as far as possible without adding the increasingly burdened segment to the study area; absent evidence of some impropriety in this adjustment, it is impossible to find that it was not professionally acceptable, especially in the absence of objection from DOT as to exclusion of I-75 from the study area. All transportation engineers, including Petitioner's witness, agreed that a manual adjustment was indicated to increase the assignment of trips to I-75; they disagreed only as to the extent of the increase. Projecting traffic volumes even for just four years is necessarily a rough-hewn process, which, in this case, did not even assign an input to the cost of fuel and its effect on traffic volumes. The magnitude of the changes for which Petitioner contends would introduce into this process more precision than the process can support. The projection is for only four years, so, with or without manual adjustments to model outputs, the potential for error is reduced when compared to longer planning horizons. Given the detailed methodology and analytic exercise described above, the multiple-agency review, and the absence of affirmative evidence of bad faith, KH collected appropriate data in a professionally acceptable manner and applied the data, in a professionally acceptable manner, to identify the study area, the impacted road segments and intersections, and the improvements necessary to maintain adopted LOS standards on these segments and intersections. Petitioner has failed to prove to the exclusion of fair debate that the data and analysis regarding the Cumulative Amendments are inconsistent with the criteria that the date be appropriate to the plan provisions and that the data be collected and applied in a professionally acceptable manner. Whether the Identified Transportation Facilities Are Financially Feasible and Properly Scheduled in the Capital Improvement Program As of the date of the final hearing, Intervenors had already constructed all of the Phase I transportation improvements (Amended DO Conditions H.1.a-d) and the following Phase II transportation improvements: the roundabout at North Cattlemen Road and DeSoto Road (Amended DO Condition H.2.e), the roundabout at North Cattlemen Road and northern Access Drive (Amended DO Condition H.2.i), and the roundabout at North Cattlemen Road and the southern Access Drive (Amended DO Condition H.2.j). As of the date of the final hearing, Intervenors had almost completed construction of the signalization of Honore Avenue and DeSoto Road (Amended DO Condition H.2.d). As of the date of the final hearing, a third party had completed construction of intersection improvements at Fruitville Road and Cattlemen Road (Amended DO Condition H.2.g). As of the date of the final hearing, Intervenors had delivered to Sarasota County a letter of credit or performance bond of $33 million--sufficient to pay for the construction of North Cattlemen Road from DeSoto Road to Richardson (Amended DO Condition H.2.f) and the North Access Drive (Amended DO Condition H.2.h), for which the combined cost is estimated to be $29,517,244, and the construction of the intersection improvements at University Parkway at Cooper Creek/North Cattlemen (Amended DO Condition H.2.b), for which the cost is estimated to be $3,100,000. This leaves only two transportation projects from the Amended DO Condition H for Intervenors to complete: construction of the intersection improvements at University Parkway and Honore Avenue (Amended DO Condition H.2.a), for which the cost is estimated to be $2,250,000, and construction of the east ramp improvements at I-75 and University Parkway (Amended DO Condition H.2.c), for which the cost is estimated to be $2,000,000. Intervenors secured its undertaking to pay for these remaining transportation improvements by providing Sarasota County with financial assurance--in the form of new capital contribution agreements--adequate for these two improvements plus the construction of the transit station, but Intervenors entered into these agreements after the adoption of the Cumulative Plan Amendments. Based on the KH traffic analysis, which has not been shown to have been unreliable or unprofessional, these transportation improvements will offset the impacts of SIPOC, Phases I and II, sufficient to avoid a violation of any adopted LOS standard for any road segment or intersection. If, for some reason, the improvements were not to be adequate, the monitoring program in the Amended DO will ensure that development orders will be suspended, pursuant to the conditions contained in the Amended DO, the reference in the Remedial Plan Amendments to Intervenors' financial undertakings in the Amended DO (thus incorporating them into the comprehensive plan), and concurrency provisions in the Sarasota County comprehensive plan, unless and until these traffic impacts are offset by transportation improvements sufficient to restore service volumes to the adopted LOS standards. Additionally, the Remedial Plan Amendments contain a five-year schedule of capital improvements that adequately describes the relevant transportation improvements and the years of funding. The KH traffic analysis drives the finding that the transportation improvements already completed and to be undertaken by Intervenors will prevent any road segment or intersection from falling below the adopted LOS standard due to impacts from SIPOC traffic. As a backup, the Amended DO provides for monitoring of traffic volumes and suspends development if and when SIPOC traffic causes any road segment or intersection to fall below its adopted LOS standard. In turn, these findings inform findings as to the consistency of the undertaken capital improvements with the criteria of financial feasibility and scheduling capital improvements. Petitioner has failed to prove to the exclusion of fair debate that the Cumulative Plan Amendments are not consistent with the criteria of financial feasibility and scheduling capital improvements.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding the Cumulative Plan Amendments to be in compliance. DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2008. COPIES FURNISHED: Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Christopher Torres Greenberg Traurig, PA 625 East Twiggs Street, Suite 100 Tampa, Florida 33602 Stephen E. Demarsh Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236-6808 Alan W. Roddy Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Martha Harrell Chumbler Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2160 Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the Petitioner is entitled to additional points on the October 1996 Civil Engineering exam.
Findings Of Fact In October 1996, Jane A. Caldera (Petitioner) took the Principles and Practice of Engineering Examination. By grade report dated February 17, 1997, the Petitioner was notified by the Department of Business and Professional Regulation (Department) that she had received a score of 67 points on the exam. A minimum score of 70 points was required to pass the October 1996 engineering examination. The Petitioner challenges the scoring of her responses on question 121 and question 423 (parts 1, 2 and 4). Question 121 required mathematical calculation of channel flow rates based on a hypothetical set of facts. On question 121, the Petitioner received four points from a total of ten available points. The evidence establishes that the Petitioner should have received a total of six points for her response to question 121. The scoring plan for question 121 provides that six points are awarded for "minimum competence." The scoring plan for question 121 defines minimum competence as follows: Must attempt all parts of part (a) and gives answers for flow depth and flow discharge within [plus or minus] 5 percent but omits flow state. OR Solves flow depth and flow discharge within accuracy of [plus or minus] 10 percent, for both, and provides demonstrated answer for flow state. OR Neglects inlet loss in solution of flow depth and flow discharge, and provides demonstrated answer for flow state. (Emphasis supplied.) The Petitioner asserts that her answer to question 121 meets the level of minimum competence because she provided the correct answer for flow state, depth and discharge, but neglected to allow for the inlet loss in her answer. The greater weight of the evidence supports the Petitioner's assertion. Respondent's Exhibit 4, a re-score result by the National Counsel of Examiners for Engineering and Surveying states that the Petitioner is not entitled to additional points on question 121 because the "examinee's solution does not meet the accuracy criteria set for a score of 6 and did more than required for a score of 2. Therefore, the solution was scored at a level of 4." The re-scoring report is uncorroborated hearsay. The re-scoring report does not appear to follow the specific criteria set forth in the scoring plan for the examination. The scoring of the Petitioner's response to question 121 was arbitrary and capricious. Question 423 requires calculations related to motor vehicle traffic flow. A hypothetical set of facts are included which identifies the percentages of passenger cars, three-axle trucks, four-axle trucks, and five-axle trucks passing a traffic count station. Question 423, part one, states "[t]he annual number of passenger cars (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part one, an examinee must determine the total number of vehicles and then calculate the total number of passenger cars as a percentage of the total vehicle count, in order to correctly answer the question. Question 423, part two, states "[t]he annual number of five-axle trucks (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part two, an examinee must determine the total number of vehicles and then calculate the total number of five-axle trucks as a percentage of the total vehicle count, in order to correctly answer the question. The word "(vehicles)" in question 423 parts one and two is extraneous. The question can be answered without inclusion of the reference to "(vehicles)." The Petitioner asserts that inclusion of the reference to "(vehicles)" in the question is confusing and prevents an examinee from responding appropriately. The evidence fails to support the Petitioner's assertion. Question 423, part four, states "[t]he 30th highest hourly volume (vehicles) at the count station is most nearly:" and provides four possible answers. In order to respond to question 423, part four, the "K-factor" must be considered. A K-factor is a ratio commonly expressed as a subscript, related to traffic flow computation. In question 423, part four, the hypothetical fact states that the "K-factor is 0.10" but does not state the K- factor in the form of a subscript. The Department asserts that the examinee should have assumed a value of K30. The Petitioner asserts, and the evidence establishes that the appropriate K-factor in an urban setting is K200. The Department's expert witness was asked if there was any basis to assume that the K-factor in the problem was K30 "as opposed to any of the other K's that are used in traffic engineering problems," to which he replied that there was not. The evidence fails to establish that question 423, part four, contains sufficient information which would lead an examinee to reasonably assume a factor of K30 was applicable under the set of hypothetical facts provided in the question. The Department's assertion that a factor of K30 should be assumed by an examinee is arbitrary and capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order awarding to Jane A. Caldera such additional points as are set forth herein. DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1998. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jane A. Caldera 16810 Stanza Court Tampa, Florida 33624 Mario Romero, Esquire Bull and Associates, P.A. 111 North Orange Avenue, Suite 1700 Orlando, Florida 32801 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Tri-State Systems owns the sign located on US 41, 3.88 miles south of SR 50, the sign on US 98, 11.56 miles north of US 41 and the sign on 1-75, 10.43 miles north of the 1-4/1-275 junction. All of these signs are without permits. Petitioner's agents have talked to Respondent's agents and advised them of the requirements for permitting the signs. Respondent has filed application for permit for the sign on US 41, 3.88 miles west of SR 50 and Petitioner is awaiting a copy of Respondent's lease agreement to obtain the legal description to ascertain if the location was zoned commercial or industrial. The sign located on US 98, 11.56 miles north of US 41 is in an area zoned agricultural and a zoning of commercial would be inconsistent with the area. All highways here involved are federal-aid primary highways. The sign on 1-75 has not been permitted since 1971 and the zoning of the area in which the sign is located is agricultural.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation, State of Florida, was the state agency responsible for the promulgation, within the limits of its delegated legislative authority, of administrative rules governing the construction and operation of public highways within the state. The Department's Notice of Rulemaking to amend Chapter 14-96, F.A.C., was published in the November 10, 1994 edition of the Florida Administrative Weekly. The Department proposed to substantially amend the provisions of Rules 14-96.001, .0011, .002, .003, .004, .005, .007, .008, .009, .011, .012, .015; to adopt new Rules 14-96.0121 and 14-96.016; and to repeal Rules 14-96.0031, .006, .010, .013, and .014. Forms were also to be incorporated into the rules by reference. Racetrac Petroleum, Inc., (Racetrac), which, by stipulation, the Respondent agrees has standing in general to contest this rule, operates 41 properties in Florida. Approximately 90 percent of these are located on the state highway system. There were, at the time of the hearing, two sites under construction and eight more in the permitting process. Future plans call for further development with as many as one hundred sites under consideration. Factors considered by Racetrac when it looks at property during site acquisition include traffic counts and access to major thoroughfares and to the roads which abut the property. There are also factors considered in determining the continued development of a specific site. These include the risk to investment capital, and the potential for future reduction in access to the property. Any reduction in or change to access to and from the property changes the risk factor. The Department has two primary objectives in designing highways. These are planning for a reasonable lifetime for the highway as initially constructed, and controlling vehicle conflicts. The latter relates directly to the capacity and safety of the highway. When it designs the highways for this state, the Department relys on principles of traffic engineering to address their safety and operation efficiency. These principles are based upon an understanding of driver behavior. It is better to anticipate future safety and operational conditions and design for them, than to have to address a problem after it occurs. Driver behavior is an integral part of the information considered by traffic engineers in analyzing safety and operations of the state highway system. Other information considered includes the Department's highway construction and expansion plans. Of great importance in highway design is the need to minimize vehicle conflicts as there is a demonstrated relationship between highway safety and the number of vehicle conflicts on that highway. In designing highways, the Department engineers rely on design manuals which outline the geometric design of the road and provide for such control devices as pavement markings and the like. Safety is also affected by the various decisions that a driver must make in any given time. The larger number of decisions to be made, the greater the safety problem. In order to reduce the number of conflicts, the Department must either separate the drivers or separate in time the opportunity for conflict. Separating conflicts in time allows the driver to make separate decisions for each conflict, and in so doing, improves the safety of the highway. Access regulation is an inherent factor in highway operation to insure the safety and efficiency of the highway. Access management includes four basic principles. These are (1) reducing the number of vehicle conflicts on a highway segment; (2) separating conflict points; (3) limiting deceleration in through traffic lanes; and (4) taking turning vehicles from through traffic lanes. Access connections may be in the form of private driveways and public streets which intersect with a state highway. Management of access through those connections includes the placement and design of those connections while maintaining the right of the abutting property owner to access to the State Highway System. Proposed Rule Chapter 14-96, F.A.C. is the Department's guideline for access management. It addresses the process by which an abutting property owner may secure a permit for a connection to the State Highway System and provides the means for the closure or modification, by the Department, of existing connections. The existing Rule 14-96 was adopted in April, 1990, prior to the amendment of the Access Management Act in 1992. The rule under consideration here is the Department's attempt to amend Rule 14-96 in response to the provisions of the 1992 Act amendments and to treat matters not addressed in the 1990 rule. The proposed rule in issue here seeks to control a technical operation - the management of connections between private driveways and the State Highway System. Inherent therein is the use of numerous terms, the definition of which must be understood if the rule is to be effective and accomplish its purpose. Proposed Rule 14.96.002(6) defines the relocation, alteration or closure of a connection. An "alteration" of a connection is defined as agency action which would "substantially reduce the width" of a connection. "Relocation" of a connection is described as action to "substantially relocate" a connection. In each case, the terms "substantially reduce the width" and "substantially relocate" have meanings which are generally understood within the transportation engineering community. The former is generally recognized as a narrowing of a connection by one lane or a narrowing which affects the ability of vehicles to make a turning movement through the connection. The latter is generally understood to mean a lateral movement of the connection by one lane width. These definitions, however, do not necessarily answer the question of whether a change adversely affects the property owner. In most situations, the change is fact specific. What may be a small change may well have a significant impact on a connected property owner. What may be a physically significant change to a connection may yet have little impact on the property owner served by it. Some reductive changes may have a positive and beneficial impact on the operation of the connection. Petitioner seeks to show that the Department does not provide notice to property owners before it engages in either relocating, modifying, closing or altering a connection. It is true that the Department's current rules regarding access management do not provide for written notice to property owners when minor changes to driveway connections are made. However, the evidence introduced at hearing indicates that as a general practice, the Department does make contact with property owners to discuss such changes before they are made. It is further clear that when driveway connections are changed, the Department issues notices of intended agency action along with a notice of appeal rights, and there is no evidence in the record to indicate that the proposed rule would, in any way, deny a property owner's right to an administrative hearing when a proposed Departmental action would adversely affect those substantial interests. Another issue in contest is whether a raised median can constitute a traffic control device, and what procedures are required to change median openings. Proposed Rule 14-96.003(6) classifies medians and median openings as traffic control devices or features, and provides that the Department may install, remove or otherwise modify such features to promote traffic safety and efficient traffic operations. The use of raised medians is designed to correct safety problems on state roads as they prevent unlimited left turns. Traffic engineering studies have shown that when raised medians are installed on highways, the crash rate goes down and the Department's standard for installing or modifying traffic control features to promote traffic safety and operations is consistent with the Department's other safety and operational enhancement practices, such as separating conflicts. To do so, the Department must have flexibility in the design of its roads. Since they provide guidance and direction to vehicles travelling on the highway, raised medians are recognized as traffic control devices. The openings in such medians are also considered traffic control devices because they are an integral part of the median design. Raised medians are safety devices constructed on multi-laned roads. Ordinarily there are two lanes on each side of the median to the edge of the road. Median openings are designed to allow a vehicle proceeding one side of the median to cross to the opposite of the road without proceeding to an intersection. A median opening is not, however, a method of ingress or egress for property abutting the highway. A vehicle exiting from a piece of abutting property can enter onto the highway and proceed in one direction without crossing the median. In order to get to the opposite side of the road, or into the traffic proceeding in the opposite direction, however, a driver must go through a median opening or an intersection on a road divided by a raised median. A median opening does not give access to the private property abutting the highway. Though it facilitates access from the opposite side of the road, it is not a part of the connection as a vehicle passing through a median opening toward property on the opposite side of the highway must traverse two or more lanes of the highway before it can reach the juncture between the property and the highway. Petitioner attempted to establish that median openings are a part of the connection to a state highway, and there is some evidence to support that position. However, the better weight of the evidence indicates that median openings which are aligned with driveways are generally not considered connections to state highways, but are merely a convenience to the property owner. By themselves, and with the driveway, they permit opportunity to use the driveway but are not considered access features. They do not connect private property to the highway, but merely allow traffic to cross from one side of the highway to the other. As was stated, a raised median with openings placed at appropriate places thereon, is a safety device promoting the safe and efficient operation of the highway. The design of raised medians and the location of the median openings is determined through a study and evaluation of the needs of that section of the highway, including the need to provide for left turn movements. Highway traffic engineers must have the latitude to design and place medians where they will have the most salutary effect on the traffic on that highway. The ultimate consideration of highway designers is to design a highway meeting the current and anticipated traffic needs in the area in such a way that promotes traffic safety and efficiency on the state highways. The term, "promote", is understood and used by transportation engineers, some of whom may, however, prefer to use the term "improve." In either case, however, whichever term is used in connection with traffic safety and efficiency, they are generally understood as meaning the creation of a driving environment that would minimize or reduce crashes. Whereas those terms are ordinarily used as criteria supporting highway construction and design, they also afford abutting property owners the opportunity to challenge a Department decision to close a median opening on the basis that neither traffic safety nor efficient traffic operations would be promoted by the closure. There are frequently solid bases for maintaining a median opening. Closing it may overload an intersection with traffic that would otherwise turn at the median opening. In addition, certain types of abutting properties, such as high volume or specialized vehicle operations, might justify maintaining a median opening. The current version of Chapter 14-96 does not require the Department to give notice to abutting property owners when a median opening is to be closed. Proposed Rule 14-96.003(5) also does not specifically provide for a written notice to an abutting property owner. However, it has historically been Department practice to provide such notice to property owners prior to taking closure action, and it is the intention of the Department, as evidenced by the testimony at hearing, to continue the practice of addressing the issue of notice on a case by case basis. Petitioner seeks to challenge the Department's definition of certain terms used within the proposed rule and outlined in Proposed Rule 14-96.002. One of these is the term, "connection permit" which is defined in subparagraph (5). This provision defines a connection permit as: "a written authorization issued by the Department allowing the initiation of construction of a specifically designed connection and any specific conditions related to the subject connection to the State Highway system at a specific location generating an estimated volume of traffic. Petitioner alleges this definition allows the Department to expand its control by specifically limiting a volume of traffic through a given connection in violation of the statute which permits limitations on vehicle use only on "non-conforming" access points. The Department rejects this assertion, claiming the phrase was included only to refer to the connection category applied for. The Department's position is a reasonable reading of the language in issue, and it is so found. Proposed Rule 14-96.002(13), challenged by the Petitioners as being arbitrary, seeks to list those organizations whose publications are considered "generally accepted professional practice", another term challenged by the Petitioner. This rule includes the Department as one of those agencies whose publications fall within that category. Petitioner claims it is inappropriate for the Department to list itself as an authority for determining what constitutes generally accepted professional practice when that is considered as a standard by which the Department will take action. At first glance it would seem that the practice is questionable. However, evidence at the hearing, from experts with national reputations in the fields of traffic engineering and traffic management, indicates that the Florida Department of Transportation is recognized as a national authority in the area of access management, the subject matter with which the rule in question deals. Some Department publications in this area, and that of transportation engineering, have been recognized nationally. It should also be noted that the proposed rule does not prioritize by way of use preference any of the publications listed, nor does it require applicants to use Department publications. By the same token, it does not make Department studies which have been based on Department publications, any more authoritative than those based on publications by others. It would appear, also, that including the Department as an authority in the proposed rule is consistent with "generally accepted professional practice" in transportation engineering, and the evidence also indicates it is generally accepted professional practice in engineering to use local publications in making engineering decisions for the local area. Some experts even suggest it would be improper to disregard local publications and give credence only to national publications. Another term used by the Department in the Proposed Rule at 14- 96.002(19), and challenged here by Petitioner is "non-restrictive median." Petitioner contends this definition contravenes the Manual and Uniform Traffic Control Devices, (MUTCD), (Rule 14-15.010) as it, allegedly, includes any painted center line as a non-restrictive median. It appears the Department has taken this definition directly from Rule 14-94.002(23). The MUTCD does not refer to "restrictive" as opposed to "non-restrictive" medians. It was the intent of the Department, in drafting this provision, to simplify the application of its spacing standards, and in doing so, has reduced the relevant categories of connections from twelve to six. "Reasonable access" is defined in Proposed Rule 14-96.002(22) as: ... the minimum number of connections, direct or indirect, necessary to provide safe ingress and egress to the State Highway System based on Section 335.18, Florida Statutes, the Access Management Classification, projected connection and roadway traffic volumes, and the type and intensity of the land use. Petitioner claims that the use of the word, "indirect" in this definition attempts to nullify the amendments to the Access Management Act, (AMA), which, according to Petitioner, eliminated the authority of the Department to consider either alternate or joint access as reasonable access. The term "reasonable access" in its definition, requires the consideration of varying factors. The Department has a concern for the safety of the traveling public as well as a recognition of the statutory mandate encompassed in the AMA that every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway. These countervailing forces have to be maintained in balance. The determination of what constitutes reasonable access requires the evaluation of several factors pertinent to the specific instance. Factors to be considered include traffic volume, safety, operational efficiency, highway characteristics, growth potential and the impact of the proposed connection on all of the above. Also to be considered is the basic statutory right of a property owner to reasonable access and the impact on him of denial of that access. No firm and fast formula for determining the reasonableness of access has been devised. Direct access is easy to determine. It is a connection which joins the highway directly. However, there are other means of providing access. These may include access gained by connection to a side street which directly connects with the highway, or the use of a joint easement or a service road and are called indirect access. In determining whether indirect access can constitute reasonable access, many factors, including those cited above, must be considered. Another definition challenged is that of "significant change", as defined in Proposed Rule 14-96.-002(27)as: ... a change in the use of the property, including land, structure or facilities, or an expansion of the size of the structures or facilities causing an increase in the trip generation of the property exceeding 25 percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use. If the Department determines that the increased traffic generated by the property does not require modifications to the existing permitted connections, a new permit application shall not be required. Petitioners claim that this provision tries to modify the definition of significant change as found in the AMA by giving the Department the authority to determine what is a significant change. Comparison to the AMA, (at Section 335.182(3)(b)), Florida Statutes, reveals that the first sentence of the rule definition is identical to the statutory definition of significant change. In the rule, however, the last sentence is added. It does not change the meaning or effect of the statutory definition but merely advises the public that a significant change need not necessarily require a new permit application. Proposed Rule 14-96.003(4), as it relates to the cost of alterations to a permitted connection, provides that the cost of all construction related to the permit shall be the responsibility of the permittee, with certain exceptions. If an existing permit requires alteration to meet current standards, the alteration will be done at no cost to the permittee, unless the permittee requests modifications beyond those required by the Department. In that case, the change shall be subject to Departmental approval and shall be the responsibility of the permittee. Petitioner claims this provision conflicts with the AMA where it grants authority to modify existing permitted or grandfathered connections. Petitioner reads into this provision authority which is not there. This provision deals particularly with the cost of any modification or alteration and does not purport to grant to the Department any authority not already within its charter. Petitioners claim that Proposed Rule 14-96.003(7) exceeds the authority granted to the Department by attempting to place a burden on a connection permit applicant to demonstrate that the proposed connection will create a benefit to the State Highway System. This provision states: If the requirements of rule chapter 14-97 or other adopted Department access management standards cannot be reasonably complied with, or if the standards can be met but the applicant desires to submit an alternative plan, the applicant may submit alternative plans which will require the approval of the Department's District Secretary or designee. The acceptance of any alternative plans shall be based upon maximum achievement of the purpose of Rule chapter 14-97 F.A.C. and Section 335.181, Florida Statutes. Any alternative access plan proposed under this section will need to provide document- ation, in a traffic study, signed and sealed by a professional engineer registered in the State of Florida, how the plan better serves the driving public and not just the applicant's clients or customers. The Department will also consider the transportation conditions stated in Section 335.184(3)(a), Florida Statutes. This provision provides for an applicant, who can meet the Department's standards but who prefers to submit a non-conforming proposal, to do so. The rule thereafter requires that applicant to show, by use of a professionally accomplished traffic study, where the alternative proposal serves the public better than the conforming plan. Once the applicant identifies the specifics of his alternative plan, the Department and the applicant discuss the alternative and the Department has the opportunity to stipulate any conditions pertinent to the alternative. If there is no agreement, though not specifically provided for in the rule, the Department claims the applicant has an opportunity to challenge any condition felt to be improper. The forum for or method of that challenge is not stipulated. Petitioner also challenges Proposed Rule 14-96.005(3)(a)&(b) on much the same grounds, but also alleges that these provisions require notice and a new application for any modification to an existing permit even when no significant change occurs. Petitioners claim there is no specific statutory authority for the Department to require this. Subsection (a) of the proposed rule merely requires, in the event of a significant change, an abutting property owner to seek of the Department a determination as to whether a permit application must be filed and whether changes to existing connections are required. If no significant change exists, no action is required by the property owner, and even should there be a significant change, if no modification to the connection is necessary, no new permit application is required. Subsection (b) of the proposed rule calls for the Department to issue notice to a property owner when a significant change has occurred and the property owner has not filed a required permit application. In any case, the Department claims, the property owner is granted opportunity to contest either or both the determination of significant change and the need to modify the connection in a hearing conducted under the provisions of Section 120.57(1), Florida Statutes. The Proposed Rule does not so provide, however. Petitioner contends that Proposed Rule 14-96.007(4)(c) & (d) constitute an unlawful indexing and creates an unlawful presumption of reasonable access in cases of joint or alternate access. To be sure, the proposed rule does establish a presumption that existing access is reasonable but it also provides an applicant seeking additional access with an opportunity to rebut this presumption. The presumption in subsection (d), that existing "grandfathered" access connections are reasonable, carries with it the opportunity for the applicant to show that it is not. In short, the presumptions created by the rule are rebuttable. Petitioner also claims that the requirement in Proposed Rule 14- 96.007(9) for recording of access permit conditions is not supported by any statutory authority. As noted in the rule requirement, the conditions are limited to only those contained in the access permit, and the recording requirement is no more than an effort to insure compliance and avoid the possibility of future misunderstanding. Another proposed provision in Proposed Rule 14-96.007(10) is contested by Petitioner who alleges there is no statutory authority to attempt to eliminate expansion of highway right of way through the acquisition of abandoned transportation corridors for access to state highways by abutting landowners. The rule in question states that abandoned rail corridors which are adjacent to state highways are considered intervening properties. This applies, however, only to those properties acquired for non-highway uses, not to that acquired for highway expansion. Petitioner also claims that through Proposed Rule 14-96.011(1)(d) the Department, without statutory authority, tries to make "potential" safety or operational problems grounds for revoking or modifying an existing connection. Section 335.187, Florida Statutes, which governs the revocation or modification of connections does not refer to "potential" problems. The proposed rule allows the Department to close or modify a permitted connection if it determines the connection poses a current or potential safety problem which is documented by an engineering study. There is no quarrel with action to close or modify a connection which is unsafe when that condition can be shown through existing factors. It is not enough to only react to existing problems, however. Department engineers must be able to predict those areas which can reasonably be expected to pose future safety problems. In doing so, they may use information which indicates the potential problem by expected changes to the conditions creating traffic on the highway. Petitioner contests Proposed Rule 14-96.012(2)(b) and (3)(b)3. Its challenge to the former is based on its contention that the proposed rules ignore the statutory mandate regarding closure or modification of unpermitted connections since they are applicable only to new connections. Petitioner also asserts that the latter unlawfully allows the Department to determine that a property owner's request for hearing was filed for purposes of delay and is, therefore, arbitrary and capricious. The proposed rule allows the Department to close or modify unpermitted connections for a variety of reasons. Included are: (1) that significant changes have occurred; (2) the safety or operational characteristics of the highway would be negatively impacted; and (3) the connection is not grandfathered. Notwithstanding the rule permits a property owner with an illegal connection to maintain that connection pending hearing or issuance of the permit, the Department may nonetheless close the connection if it can determine the owner's actions are for the purpose of delaying the Department's exercise of its jurisdiction. Further, though the Proposed Rule 14-96.012(2)(b) refers to conditions which "jeopardize the public safety", the Department considers that language to be operationally similar to the "current or potential safety problem" standard, as used elsewhere in the rule chapter, and it contends it does not intend to treat the two types of connections differently in regard to modifications or closures based on safety considerations. Petitioner also contends that the Department has no authority to modify existing permitted or unpermitted legal connections during construction projects as is provided for in Proposed Rule 14-96.015. While changes may be made, the rule does not permit changes to be made indiscriminately. Modifications may be made consistent with the Department's access management standards as outlined in Rule 14-96 and with the Standard Index. Further, the Proposed Rule provides for property owners to be given notice of proposed Departmental actions, except for eminent domain situations, which would afford the property owner the opportunity to challenge the propriety or necessity of the proposed modification. Notice is currently given in these situations even though the current rule does not require it.
