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 issue in this case is whether the comprehensive plan amendment adopted by Suwannee County ordinance number 94-02, on June 9, 1994, (the Amendment) is "in compliance" pursuant to Section 163.3184(1)(b), Fla. Stat. (Supp. 1994). (It must be found to be "in compliance" if the County's determination that it is "in compliance" is at least "fairly debatable.")
Findings Of Fact The Parties The Department is the state land planning agency charged with the responsibility of reviewing comprehensive plans pursuant to Chapter 163, Part II, Fla. Stat. (1993). Petitioners reside in Suwannee County, Florida. Many own property adjacent to the parcel, which is the subject of the Amendment. Although, Petitioners put on no evidence that any of the Petitioners attended either the transmittal or the adoption hearing and made either written or oral objection to the Amendment, counsel for the Department and the County have stipulated that the Petitioners did attend these hearings and objected to the Amendment. Therefore each of the Petitioners is an "affected person" as defined by Section 163.3184(1)(a), Fla. Stat. (Supp. 1994). Suwannee County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Fla. Stat. (1993). General Description of the County Suwannee County is a rural county located in the north central Florida. Live Oak is the County seat. The Suwannee County Comprehensive Plan (Plan) was originally adopted and found to be in compliance in 1992. The Future Land Use Map (FLUM) of the Plan at that time designated the parcel which is the subject of the Amendment in the Agricultural-1 land use category, (less than or equal to 1 dwelling unit per 5 acres). The Proposed Amendment This case involves a parcel of land approximately 320 acres in size, which is located on SR 90, approximately 6.5 miles east of Live Oak (the Parcel). On February 1, 1994, Suwannee County (County) held a public hearing for the purpose of amending the FLUM to change the designation of the Parcel on the FLUM from Agriculture-1 to Public use. The purpose of the amendment was to authorize the construction of a prison by the State Department of Corrections on the Parcel. Pursuant to Section 163.3184, Fla. Stat. (Supp. 1994), the proposed amendment was transmitted to the Department for review. The Department's Initial Review On April 14, 1994, the Department issued an Objections, Recommendations and Comments report (ORC report). The Department set out three objections to the Amendment in the ORC. The first, related to Policy I.2.2 of the Plan, which set forth the types of public uses that were permitted under the Plan's existing public use category in rural lands. The text of the Plan would allow a community college and other "urban type uses" on the site. Department staff felt this might encourage the conversion of adjacent lands, and at the hearing, characterized the proposed Amendment as promoting "urban sprawl." The second issue raised in the ORC dealt with wetlands. The Department was concerned that under Policy V.2.4 of the Plan, public uses were not included among those uses which had to "set back" 35 feet from wetlands. The Department was concerned that the proposal to amend the FLUM to allow public use on the site would adversely affect wetlands, because under the existing Plan, the setback restriction from wetlands would not apply to public uses. The third concern raised in the ORC report involved the "public facilities analysis." The Department staff testified that the County had not taken into account the most intense use authorized by the Amendment in doing the analysis of impacts on public facilities and services. The County's Response to the ORC and Adoption of the Amendment The County held a public hearing to consider the ORC objections, and on June 9, 1994, it adopted the Amendment with changes to address the Department's ORC report. To respond to the concerns about urban sprawl, the County amended Policy I.1.6 dealing with Public Land Use Classification (in urban development areas). This portion of the Amendment reads as follows: Lands classified as public consist of public buildings and grounds and other public facil- ities, (including sewer facilities, solid waste facilities, drainage facilities and potable water facilities), public health facilities (to include hospitals, which shall be allowed in urban development areas), and educational uses (to include universities and community colleges, which shall be allowed in urban development areas); and Public uses shall be limited to an intensity of less than or equal to 1.0 floor area ratio. (Underlined portions were added.) That portion of Policy I.2.2 dealing with the Public Land Use Classification (in rural areas) was amended as follows: Lands classified as public consist of public buildings and grounds and other public facil- ities, (including sewer facilities, solid waste facilities, drainage facilities and potable water facilities), public health facilities (do not include hospitals, which shall be allowed in urban development areas only), and educational uses (not to include univer- sities and community colleges, which shall be allowed in urban development areas only); (Underlined portions were added.) This amendment mitigates against urban sprawl. Policy I.2.2 dealing with the Public Land Use Classification (in rural areas) was also amended to state as follows: Public uses shall be limited to an intensity as follows: less than 5 acres- 1.00 floor area ratio greater than or equal to 5 acres, but less than 10 acres- .75 floor area ratio greater than or equal to 10 acres, but less than 20 acres- .50 floor area ratio greater than or equal to 20 acres, but less than 40 acres- .25 floor area ratio greater than or equal to 40 acres, but less than 80 acres- .10 floor area ratio greater than or equal to 80 acres, but less than 160 acres- .075 floor area ratio greater than or equal to 160 acres, but less than 320 acres- .050 floor area ratio greater than or equal to 320 acres- .025 floor area ratio The above mentioned floor area ratios for public uses in rural areas addressed the Department's concerns about the inadequate public facilities analysis. Under this amendment, the effect of the reduced floor area ratios on a 320 acre site would be to limit the maximum lot coverage of a one floor building to 348,500 square feet. This also mitigates against urban sprawl. To respond to the Department's concerns about wetlands, the County amended Policy V.2.4, to make the 35 foot natural buffer apply to all public uses. After the adoption hearing, the County forwarded the amendment to the Department for a compliance review pursuant to Section 163.3184, Fla. Stat. (Supp. 1994). Final Department Review The Department decided that the Amendment, as adopted with the above mentioned text changes, satisfied the objections set forth in the ORC. On July 30, 1994, the Department issued a notice of intent finding the amendment in compliance. Prisons and Urban Sprawl It is at least fairly debatable whether the use of land for a prison (correctional institution) should be characterized as being either an urban use or a rural use. Prisons are qualitatively different from other typical urban or rural uses. Depending on the circumstances, prisons can be compatible in either rural or urban settings. It obviously can be expected that, if there is a prison on the Amendment Parcel, there will be a prison population and a prison staff. But it is at least fairly debatable whether prisons typically create much pressure for residential or commercial or any other kind of development outside the prison itself. Prisons generally do not attract a residential development. Most people had rather live elsewhere (as evidenced by the opposition of the Petitioners in this case.) Some of the prison staff will reside in residential facilities at the prison. Since the Amendment Parcel is only two and a half miles from Wellborn and only about six miles east of the city limits of Live Oak, it is at least fairly debatable whether any prison staff who do not reside in the prison's residential facilities would create pressure for additional residential housing adjacent to the prison rather than choosing to live in Wellborn or Live Oak. If any would prefer to live closer to the prison, there is no evidence from which it could be concluded that they would create pressure for new housing construction rather than buy existing homes as they become available. If any did choose to seek to build new residences nearer the prison than Wellborn or Live Oak, there is no evidence from which it could be concluded that they would choose to build homes different in character from the rural homes now existing in the area. It is at least fairly debatable whether the prison would result in any significant pressure for new development. It is at least fairly debatable whether a prison in a rural setting such as the Amendment Parcel should be expected to attract anything in the way of ancillary development more than perhaps a convenience store with gasoline pump and maybe a small food service facility. At least in rural settings, it is not unusual for prisons to be self- contained, i.e., to have their own water supply and on-site waste water treatment system and disposal. The prison planned for the Amendment Parcel is planned to be self-contained. As such, it is at least fairly debatable whether, in terms of "urban sprawl" considerations, the existence of a functional relationship between a prison in a rural setting and any rural uses in the vicinity should even be an issue. It is at least fairly debatable whether, requiring a prison in a rural county like Suwannee County to be located so as to be able to take maximum advantage of existing public facilities (such as water, sewer and fire), in order to minimize "urban sprawl," in effect would require all prisons to be located within or contiguous to urban population centers. In addition to the development controls in the Amendment itself which mitigate against urban sprawl (excluding hospitals, universities, and community colleges from, and limiting permissible floor area ratios in, Public Land in rural areas), the Suwannee County Comprehensive Plan discourages urban sprawl by establishing just four urban centers (the City of Live Oak, Wellborn, Branford, and Dowling Park) for urban development and urban land uses, while designating the rest of the County for rural uses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order dismissing the petition challenging the Amendment and determining that the Amendment is "in compliance." RECOMMENDED this 7th day of June, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4704GM To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Proposed Findings of Fact 5-30. Proposed findings of fact 5-30 in the proposed recommended orders filed by both the Petitioners and by the Respondents are identical. (Paragraphs 1-4 of the proposed recommended orders are devoted to preliminary statement.) Proposed findings of fact 26-30 are rejected as being conclusions of law. The rest are accepted and incorporated to the extent not subordinate or unnecessary. Petitioners' Proposed Findings of Fact 31-44. Rejected as being conclusions of law. Accepted. First sentence, subordinate to facts not proven or facts contrary to those found. Second sentence, subordinate to facts found. Accepted. Subordinate to facts not proven or facts contrary to those found. Rejected as not proven and as contrary to the greater weight of the evidence that only Dahlstrom testified that the Amendment discouraged urban sprawl. Last sentence, rejected as not proven and as contrary to facts found, or as conclusion of law. Otherwise, to the extent not conclusions of law, accepted and subordinate to facts found. Accepted and subordinate to facts found. Accepted. (But he also testified that the only public sewer and water facilities he knew of were in the City of Live Oak.) Subordinate to facts found. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that he "refused" or "would only"; also, he was being questioned about the proposed amendment, not the Amendment. Otherwise, accepted and subordinate to facts found. Rejected as contrary to the greater weight of the evidence that he "refused" or "would only." He testified about many other things as well, some of which are subordinate to facts found. Accepted but subordinate to facts not proven or facts contrary to those found. Cumulative and argument. Rejected that Kronenburger refuted other testimony that the proposed prison "would not create economic pressure for growth and thus would not promote urban sprawl." It was not proven that "tremendous economic impact" from a prison necessarily equates with or will lead to urban sprawl. Rejected as not proven and as contrary to facts found. Respondents' Proposed Findings of Fact 31-46. 31.-32. Rejected as being conclusions of law. Accepted. First sentence, subordinate to facts not proven or facts contrary to those found. Second sentence, subordinate to facts found. Accepted. Subordinate to facts not proven or facts contrary to those found. 35.-43. To the extent not conclusions of law, accepted. Subordinate to facts found. Accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. Accepted and incorporated. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire George T. Reeves, Esquire Davis, Browning & Schnitker, P.A. Post Office Drawer 652 Madison, Florida 32341 Terrell K. Arline, Esquire Department of Community 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. Dean Lewis, Esquire Post Office Drawer 8 Live Oak, Florida 32060 Linda Loomis Shelley Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The segment of road in question is located entirely within the City of Leesburg, Florida. The segment in question, Main Street, begins at a junction of CR 468 and SR 44 and heads in an easterly direction, is intersected about midpoint by SR 25 (US 27), then continues easterly to a junction with SR 44 on the east edge of the city, a distance of 3.670 miles. SR 25 in the urban limits of the city and where it is intersected by Main Street is classified as an urban principal arterial. SR 44 at the western and eastern terminus of Main Street is classified as an urban minor arterial. The Respondent evaluated the entire length of Main Street (3.670 miles) as one segment rather than two segments, one east of SR 25 and one west of SR 25. Main Street is bounded by SR 44, a road of higher classification than the present classification of Main Street, an urban collector, and of equal classification to the proposed classification of Main Street, a minor arterial. The traffic flow on Main Street is a continuous flow and is not significantly interrupted by the intersection of SR 25. Before evaluating Main Street under the criteria of a minor arterial the Respondent, using a method similar to the method for minor arterial classification but designed for urban collector classification, evaluated Main Street as an urban collector and calculated a System Attribute Score (SAS) of 90 which indicated a higher classification. This calculation resulted in Main Street being evaluated as a minor arterial. Respondent, in determining the functional classification of Main Street, utilized the criteria set out in Rule 14-12.015, Florida Administrative Code and scored Main Street on 5 attributes: (1) Average Daily Traffic (ADT), minimum 4,000; (2) Speed (lowest posted), minimum 35 mph; (3) Traffic Signals, minimum 3; (4) Street Length, minimum 3.5 miles; and (5) Lanes, minimum 3, with each attribute receiving a score of 1 if it met the minimum level set forth in Rule 14-12.015, Table Number 3, Florida Administrative Code. For the ADT attribute, Respondent utilized an ADT figure of 8,581, an average of 3 figures furnished verbally to the Respondent by the City Engineer. These ADT figures were not collected in accordance with Rule 14-12.017, Florida Administrative Code, as required by Rule 14-12.015(1)(b), Florida Administrative Code nor certified as required by that same rule. The Respondent was not certain of when, where or how the ADT figures furnished by the City Engineer were obtained, but the Respondent was of the opinion that the figures were obtained from a segment of Main Street east of SR 25, mainly in the heart of the City of Leesburg, Florida. The Respondent did not collect Average Daily Traffic (ADT) figures for Main Street. The Respondent used 40 miles per hour (mph) for speed attribute, but the lowest posted speed on Main Street was less than 35 mph. For the traffic signal attribute, the Respondent used 4 but there was credible evidence that 6 traffic signals were located on the 3.670 miles of Main Street. The Respondent used 2 lanes for the lanes attribute and there was no dispute as to the number of lanes. For the length attribute, the Respondent used 3.670 miles and there was no dispute as to the length. The Respondent assigned a score of 1 to each of the attributes, with the exception of lanes which was assigned a score of zero, for a total score of 4 which when multiplied by the system element coefficient of 15, found in Part II-Small Urban Area System Elements and Coefficients, Table 4, Arterial to Arterial, as required by Rule 14-12.015(3), Florida Administrative Code, equals a SAS of 60. However, since the Respondent relied on invalid ADT figures and on incorrect speed limit the correct SAS would be 30 which required the Respondent to classify Main Street as a minor arterial. In 1982, the City of Leesburg, Florida contemplated an urban renewal project which would involve Main Street and therefore requested the Respondent to reroute that segment of SR 44 within the city (what is currently known as Main Street was then SR 44) so that Main Street could become a city street. Public hearings were held on the rerouting of SR 44 and there were no objections. However, before rerouting SR 44 the Respondent required the Petitioner to pass a resolution stating that it did not object to the rerouting or to removing those segments of CR 468 and CR 33 involved in the rerouting from the County Road System and transferring those segments of CR 468 and CR 33 to the State Road System. The resolution was adopted by the county, but there was no indication, other than that Main Street would become a city street, that the County was acting on a representation by the Respondent that Main Street would always remain classified as a city street and under the jurisdiction of the City of Leesburg. Although the Petitioner expended funds on CR 468 and CR 33 prior to transferring them to the State Road System, there was no evidence that the Respondent required this expenditure prior to the transfer of the roads or that because of this expenditure, or for any other reason, the Respondent represented to the Petitioner that Main Street would always remain classified a city street and under the jurisdiction of the City of Leesburg. There was no evidence that the Petitioner relied on Main Street being transferred to the jurisdiction of the City of Leesburg to make any expenditure of funds for the improvement of CR 468 and CR 33 or for the expenditure any other funds. Main Street does not meet the minimum attribute level for classifications as an urban principal arterial in a small urban area.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that Respondent, Florida Department of Transportation enter a Final Order assigning jurisdiction over Main Street in Leesburg, Florida beginning at a junction of CR 468 and SR 44 and moving in an easterly direction to a junction with SR 44 on the east edge of the City of Leesburg, Florida to Petitioner. Respectfully submitted and entered this 25th day July, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 25th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4388 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact l. Adopted in Finding of Fact 4. 3-6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 7 but clarified. 8-9. Adopted in Findings of Fact 12 and 13 respectively. 10-11. Rejected as immaterial or irrelevant to any determination in this case. 12-14. Adopted in Finding of Fact 17. Rejected as immaterial or irrelevant to any determination in this case. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 18 except that reclassification of Main Street was not the subject of the resolution. Rulings on Proposed Findings of Fact Submitted by the Respondent The first 2 sentences are rejected as immaterial or irrelevant to any determination in this case. The third sentence is rejected as not being supported by substantial competent evidence in the record in that Main Street was located entirely within the city limits of Leesburg. The fourth, sixth, and seventh sentence are adopted in Findings of Fact 1, 8, and 12, respectively. The fifth sentence is adopted in Findings of Fact 6. The eighth and ninth sentence is adopted in Finding of Fact 13. The tenth sentence is adopted in Findings of Fact 14 and 15. The first 2 sentences are rejected as not being material or relevant to any determination in this case. The third sentence is adopted in Finding of Fact 5. The fourth and fifth sentences are adopted in Finding of Fact 16. The first 6 sentences are rejected as not being material or relevant to any determination in this case. The balance of paragraph 3 is adopted in Findings of Fact 17, 18, 19, 20 and 21 but clarified. COPIES FURNISHED: Sanford A. Minkoff, Esquire 1150 East Highway 441 Tavares, Florida 32778 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458
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 Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including a consideration of Respondent's Proposed Findings of Fact, I make the following relevant factual findings. A new segment of the interstate highway system (I -95) was completed from Gatlin Boulevard to the Martin County line in St. Lucie County, Florida on February 26, 1982. That segment was barricaded, and not opened to the motoring public until April 12, 1985, since there was no interchange open to the motoring public south of the newly completed segment. Lockridge Sales & Marketing Company, Inc., Petitioner, submitted applications to Respondent on July 1, 1986 for state sign permits for site locations at 500 feet, 2,000 feet, and 3,500 feet south of Gatlin Boulevard, on the east side of I-95, 15 feet from the highway right-of-way, in Port St. Lucie, St. Lucie County, Florida. Petitioner's applications were reviewed by Respondent's outdoor advertising inspector, Vanna Kinchen, who recommended denial of the applications "because the prospective sign site were on a new highway outside an urban area". (Respondent's Exhibit 2). Thereafter, Petitioner's applications were forwarded to Respondent's District Outdoor Administrator, who also reviewed the permit applications and denied them by memorandum of the returned applications on July 11, 1986. (Respondent's Exhibit 3). Current urban area boundaries are based on 1980 U.S. Census designations with recommendations from the metropolitan planning agency and approval by the Department (Respondent) and the Federal Highway Administration. Urban area boundaries can be inside or outside the city limits depending on population density. Typically, urban areas are outside the city limits, however, the current urban area designation for the Fort Pierce area, which includes St. Lucie County and Port St. Lucie, shows the area south of Gatlin Boulevard, adjacent to the east side of I-95, to be outside the subject urban area boundary. Petitioner's General Manager, Gary Hodge, takes the position that since the section of I-95 here under consideration was accepted by the State as completed during 1982, it was a highway at that time. Petitioner offered no evidence to refute Respondent's position that the subject segment of the interstate highway was not opened to the motoring public prior to April 12, 1985. It is therefore found that the subject segment of I-95 was not a highway until April 12, 1985. On April 12, 1985, the subject highway was a "new highway" situated outside an urban area.
The Issue The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 21st day of November, 2016.
Findings Of Fact In 1987, the Respondent DOT began its review of the public roads within Glades County in order to assign maintenance and jurisdictional responsibility in accordance with the current functional classification of each road. By law, the DOT is required to conduct such a review every five years. Section 05040 of State Road 78 is located within the unincorporated area of Glades County. This paved, two-lane road segment is 14.8 miles in length, and predominantly runs in an east-west direction. Approximately two miles of the eastern portion veers to the north, where the segment then connects with State Road 25 (U.S. Highway 27). The western terminus of this road segment adjoins State Road 29, and the eastern terminus as mentioned previously, adjoins State Road 25 (U.S. Highway 27). There is a radical change in direction at both ends where the segment connects with the two adjacent roads. At the western terminus, State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 enters into Hendry County and extends to LaBelle, the county seat. At the eastern terminus, State Road 25 (U.S. Highway 27) runs for approximately five miles before it reconnects with another portion of State Road 78 which runs in a northeasterly direction around the border of Lake Okeechobee into Okeechobee County, and onto the City of Okeechobee, the county seat. Through the use of approximately four miles of the southwesterly portion of State Road 29 and approximately five miles of the easterly portion of State Road 25 (U.S. Highway 27), State Road 78 becomes a transportation corridor which connects Hendry County, Glades County, and Okeechobee County. This corridor is used by members of the Gulf Citrus Growers Association in Hendry County to transport citrus to market in other parts of the state. State Road 29 and State Road 25 (U.S. Highway 27) are functionally classified as arterial roads on the state highway system. During the functional classification evaluations within Glades County, Section 05040 of State Road 78 was reviewed by DOT. As part of the process, an inventory worksheet was used to determine how the road would be classified under the current scoring system. A Rural Arterial Inventory Worksheet (Respondent's Exhibit 15) was used to determine the roadway's System Attribute Score (SAS). As part of the evaluation process, the system element coefficient must be located within Table Number 4 of Chapter 14-12, Florida Administrative Code. The Administrator of Transportation Data for District 1 correctly determined that the system element coefficient was 5, and the rural element number was 12. The first attribute reviewed on the worksheet in order to obtain the SAS was the Traffic Factor. Under the definitions found in Table 1 of Chapter 14-12, Florida Administrative Code, the Traffic Factor is calculated by multiplying the Average Daily Traffic Count by the county's normalizing coefficient Tpd of 1.73. Again, the administrator correctly assessed the value of 2,782 on the worksheet. Usually, a score below 3,000 under the Traffic Factor results in an evaluation score of "zero" on the Rural Arterial Inventory Worksheet. However, Table Number 1 of Chapter 14-12, Florida Administrative Code, notes that when 50% of traffic volume is non-local traffic, a score of "one" is placed on the worksheet instead of a "zero." Competent and credible testimony presented at hearing from local citizens, who had the opportunity to know the composition of the traffic on the road segment, revealed that a relatively small percentage of Section 05040 of State Road 78 traffic was local. The majority of the traffic was comprised of out-of-county motorists. Based upon this testimony, the Traffic Factor score on the worksheet should be changed from "zero" to "one." The second attribute reviewed on the worksheet was the Access Factor. This score is calculated by dividing the average daily traffic (ADT) by the number of access points per mile. Instead of using available information with the DOT or asking for information from local authorities regarding this attribute, the administrator grossly overestimated that the road segment contained twenty access points per mile. No reasonable basis was presented at hearing by the administrator for his "estimate" of twenty access points per mile on a rural segment in one of the more remote and under populated areas within his district. The videotape presented at hearing clearly demonstrates that there are not twenty access points per mile on this roadway. Unrefuted testimony presented at hearing revealed that approximately twenty-five families reside along this 14.8 mile stretch of road. There is also a large rock mine, a cemetery, and the county landfill. Respondent's Exhibit 5, the General Highway Map of Glades County, shows that a DOT facility is located on this road segment. There are four roads which intersect the road segment and one railroad grade crossing. A locked gate at the Caloosahatchee Rock Mine has a driveway which connects to the road. To deny the road segment the minimum score of "one" on the access factor, the DOT would have to estimate in its calculation that there are more than ten access points per mile on this road. Based upon the evidence presented at hearing, there are far less than ten access points per mile on this road segment. Therefore, the Access Factor score on the worksheet should be changed from "zero" to "one." The Trucks and Network Factor attributes which each received a score of "one" from the administrator. These scores were not challenged by Petitioner. The Extent of Road attribute was not properly tested by the administrator. Under Rule 14-12.015(2), Florida Administrative Code, the entire State Road 78, along with the southwesterly portion of State Road 29, and the eastern portion of State Road 25 (U.S. Highway 27) should be utilized for the Extent of Road (miles) measurement. As the entire length of the extended transportation corridor exceeds twenty miles, the score should be "one" instead of "zero." The Mobility Attribute was not properly assessed. Rule 14-12.015(2), Florida Administrative Code, allows the extended transportation corridor to be used to determine the total number of counties in which the road is located. Testimony presented at hearing regarding the use of the road segment as part of the transport route of citrus from Hendry County through State Road 78 in Glades County to Okeechobee County supports the finding that the road is located in three counties. The score as to the Mobility Attribute should be changed from "zero" to "one." Section 05040 of State Road 78 is in an overall physical condition which is at least commensurate with contemporary roads of like age and existing functional classification (rural major collector) within Glades County.
Recommendation Accordingly, it is RECOMMENDED: That the Department of Transportation enter a Final Order that the Department's functional classification of the road segment was incorrect, that the functional classification of the road as a rural minor arterial be reinstated, and that the jurisdiction over the road remain with the Department. DONE and ENTERED this 2nd day of October 1989, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1227 Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Not a factual finding. Accepted. Accepted. See Preliminary Statement. Accepted. See Statement of the Issues. Accepted. Accepted. Rejected. See HO #19. Accepted Accept the first sentence. The second sentence is rejected as irrelevant. Accepted. Accepted. Accepted. Accepted. Accept that the Hearing Officer found the road to be improperly classified. The rest is rejected as conclusionary. Accepted. See HO #10. Accepted. See HO #4. Accepted. See HO #10. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside rule or statute. Respondent's proposed findings of fact are addressed as follows: Accept the first two sentences. The third sentence is rejected. See HO #2. Fourth sentence is accepted. See HO #5. Fifth sentence is accepted. See HO #7. Sixth sentence is rejected. See HO #7-#18. Seventh sentence is accepted. See HO #8. Eighth sentence is rejected. Improper conclusion. Ninth sentence is accepted. See Conclusions of Law. Tenth sentence is accepted. See Preliminary Statement. Accepted. See HO #19. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside the rule or statute. COPIES FURNISHED: Michael A. Rider, Esquire Post Office Box 608 Lake Placid, Florida 33852 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, P.E., Interim Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 =================================================================
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 Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
Findings Of Fact By letter dated August 20, 1987, the County requested that DOT reclassify various roads within the county from county jurisdiction to the state highway system. The request was filed under Rule 14-12.016, Florida Administrative Code. On October 21, 1988 DOT advised the County by letter that the County's request to "add 17 miles to the State Highway System in Broward County" had been denied on the ground the proposed routes did not meet DOT's road classification criteria. In its petition, the County maintains that the subject roads meet all functional classification criteria for inclusion in the state highway system as established in Section 335.04, Florida Statutes and Rule 14-12.016. The County alleges further that DOT's decision "affects the County's duty to maintain and oversee the subject roads, unfairly burdening the County with the maintenance of roads which meet the criteria for inclusion in the State Highway System."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion to dismiss the petition is hereby GRANTED, with prejudice, and that a Final Order be entered dismissing the same. DONE and ENTERED this 28th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of February, 1989. COPIES FURNISHED: Barbara A. Hall, Esquire 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
