The Issue Has Respondent's connection permit number C-16-095-93 (permit) expired under Section 335.185, Florida Statutes? Has Respondent timely complied with the requirements and conditions of the permit? If not, does Respondent's noncompliance cause safety or operational problems on State Road 555 (SR 555) which would require closing Respondent's connection to SR 555?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18-335.188, Florida Statutes, known as the State Highway System Access Management Act. Respondent owns the property in issue which is located on the southwest corner of the intersection of SR 555 and SR 655 in Polk County, Florida. As a cure for the problem created by the eminent domain proceeding in FDOT v. Shaffer concerning the preexisting connections to SR 555 and SR 655, the Department agreed to provide connections to SR 555 and SR 655 for the property involved in the instant case. By letter dated September 27, 1993, the Department agreed to honor this agreement even though it was not included in the final order in FDOT v. Shaffer. In its letter, the Department agrees to issue a permit and construct the connections "on the condition that the remaining lands are reconstructed as shown in the attachment." The letter informs Respondent that the attachment was prepared by Reggie Mesimer for the Department and that "it appears that the settlement was based on that cure." The letter also informs Respondent that the "permit will contain limiting language to make clear that the permit has not been reviewed for compliance with DOT standards and that it is issued for replacement of preexisting access." Attached to the letter was a site plan showing: (a) the parking layout for the site which included two parallel parking spaces in front of the building, six perpendicular south to north parking spaces on the south end of the building and eight perpendicular north to south parking spaces on the south side of the south parking area; (b) a connection to SR 655 on the north side of the building; (c) a connection to SR 555 at the front of the building; and (d) a connection to First Avenue, a side street, on the south side of the building. The site plan shows a driveway commencing at the connection to SR 655 and continuing on in front of the building to First Avenue on the south side of the building. The site plan does not show any signings or pavement markings to indicate traffic flow in and out of the site. Sometime around June 1993, the agreement in FDOT v. Shaffer notwithstanding, the Department attempted to close the preexisting connections to SR 555 and SR 655. As a result, Respondent requested a formal administrative hearing and Department of Transportation vs First Mortgage Corporation, DOAH Case No. 93-9037 was filed with the Division. This case was later rendered moot by the issuance of the permit for the connections to SR 555 and SR 655 and the Department's agreement to construct the connections to SR 555 and SR 655. By letter dated December 15, 1993, with an addendum dated December 16, 1993, the Respondent agreed "to designating two parallel parking spaces in front of the building and have the striping done immediately." In return, the Department would "agree to have the driveway installed as shown on the drawing originally submitted." In the addendum, Respondent states that the two designated parallel parking spaces in front of the building were being striped on December 16, 1993, and that the Respondent was removing the chain link fence on the south side of the building to provide additional parking. The addendum also states that the Respondent will resurface the entire area of the drive and parking areas after the Department finishes the road construction. Additionally, the Respondent agreed to substantially comply with the driveway and parking area as shown on an attachment. The attachment was a copy of site plan referred to above in Finding of Fact 3. Respondent's Connection Application, number C-16-095-93, was approved by the Department on December 20, 1993, and the permit was issued. The application "requests permission for the construction of a connection(s) on Department of Transportation right-of-way. . . " The connections are described as: "REPLACEMENT OF EXISTING CONNECTION: ONE 24 FT INGRESS ON SR 655, ONE 30 FT INGRESS & EGRESS ON US 17 (SR 555) FOR A CONVENIENCE STORE AND RESTAURANT." Although the permit provides blank spaces where the mandatory beginning and completion of construction dates are to be filled in, these spaces were left blank on the permit. Likewise, there is no expiration date shown on the permit. A site plan was attached to the permit. The site plan is a copy of the site plan attached to the Department's September 27, 1993, letter referred to above with signings and pavement markings added to indicate the traffic flow in and out of the site. General Provision one of the permit provides: The permittee agrees and obligates himself to perform at his own expense the relocations, closure, alteration of the permitted connection, should the Department determine that the traffic patterns, points of connection, roadway geometrics or traffic control devices are causing an undue disruption of traffic or creating safety hazards at the exiting connections. Special Provisions one through five provide: This permit application has not been reviewed for compliance with DOT standards and is issued for replacement of preexisting access by the Florida Department of Transportation. The permit is subject to the limitations in Chapter 335, Florida Statutes, to the same extent as the preexisting access. The permittee shall place signing and pavement marking, as indicated on the attached site plan, so that the connection on SR 655 is operated as ingress only. Parking layout and traffic flow will be constructed and maintained in substantially the same manner as indicated in the attached site plan. The permittee acknowledges that the attached site plan was the cure in the settle- ment in DOT vs. EDWARD M. SHAFFER, case number GC-G-91-786, Parcel 105. The permittee acknowledges that with the issuance of this permit and the Florida Depart- ment of Transportation's agreement to construct the two connections referenced in this permit, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. FIRST MORTGAGE CORPORATION, Defendant, case number 93-3037 has been rendered moot. Further- more, the permittee agrees to make the appropriate filing with the State of Florida Division of Administrative Hearings. (Emphasis supplied). The permit application was signed by Dennis G. Davis as president of First Mortgage Corporation. Dennis G. Davis also signed accepting the Special Provisions attached to the permit. As to signings and pavement markings the site plan shows: a designated driveway beginning at the SR 655 connection (north end of property) and proceeding around the front of the building (east side) to the south end of the building and commencing on to the First Avenue connection; large arrows within the designated driveway indicating ingress only from SR 655 and one-way traffic around the front of the building to a point on the south end of the building where stop signs are to be located; stop signs on each side of the one-way driveway where the one-way driveway intersects a designated two-way driveway; to the south of the stop signs, arrows indicating that the one-way traffic is to move into the south side parking lot or move into the south-bound lane of the two-way driveway that exits onto First Avenue; arrows indicating that incoming traffic from First Avenue is to move into the south side parking lot only; a No Right Turn sign on the east side of the one-way driveway just south of the stop signs where the one-way driveway intersects the two-way driveway; a No Left Turn sign on the southwest side of the south side parking lot where the south side parking lot intersects the outgoing lane of the two-way driveway that exits onto First Avenue; a stop sign just south of the southeast corner of the south side parking lot to the west of the outgoing lane of the two-way driveway just before First Avenue; and a No Exit sign on each side of the one-way driveway facing the opposite direction of the traffic flow in the one-way driveway at the northeast corner of the building. As to the parking layout, the site plan shows: two parallel parking spaces running north to south in front of the building along the west side of the one-way driveway; six perpendicular parking spaces running south to north abutting the south side of the building, and eight perpendicular parking spaces running north to south abutting the south side of the property west of the two-way driveway. The Department constructed the connection on SR 655 for ingress to the property from SR 655 and the connection on SR 555 for ingress to the property from SR 555 and egress to SR 555 from the property sometime in June 1993, which was before the expiration of one year after the date of issuance of the permit. Respondent started to comply with the signings and pavement markings of the site plan attached to the permit as early as December 16, 1993. Respondent has complied with the signings and pavement markings for traffic flow and parallel parking as shown on the site plan attached to the permit beginning at the connection to SR 655 and up to and including the two stop signs at the south end of the one-way driveway where it intersects the two-way driveway. The Respondent has maintained these signs and pavement markings during the construction on SR 555 by restriping the pavement and replacing signs that were torn down. However, due to the wear on the striping caused by construction traffic the pavement markings for the parallel spaces and traffic flow are dim and need painting. Due to a misunderstanding as to the Department's jurisdiction over First Avenue, Respondent has not completed the signings and pavement markings from the stop signs where the one-way driveway intersects the two-way driveway over to First Avenue or over to the parking lot. The Respondent has not completed the striping for the south to north perpendicular parking spaces abutting the south end of the building where there is pavement which would allow such striping. A segment of a chain link fence abuts the south end of the building preventing any further perpendicular parking abutting the south end of the building without going inside to the grassed area (green area) enclosed by the chain link fence. However, instead of parking perpendicular to the south end of the building, customers are parking east to west, perpendicular to the existing chain link fence. At the time the permit was issued, a chain link fence surrounded the green area on the south end of the property. Respondent removed the middle section of the chain link fence on the east side of the green area to provide additional parking inside the green area. Respondent has not placed signs or pavement markings around or at the entrance to the green area so that customers are made aware that the green area is available for parking. However, some customers are using the green area for parking. Although the parking layout of the site plan includes delineated parking spaces in the green area, nothing in the permit, including the site plan, specifically requires the green area to be paved. Although Respondent has indicated a willingness to stripe the designated parking spaces in the green area as shown on the site plan, striping the green area is neither feasible nor is it required under the permit. While all of the parking spaces have not been delineated by striping, there was no evidence that there were insufficient parking spaces on the site or that the lack of designated parking spaces was creating any safety or operational problem on SR 555. Although the site plan does not indicate by signings or pavement markings that the connection to SR 555 is an ingress and egress connection, the permit specifically provides for ingress and egress at the SR 555 connection and nothing on the site plan prohibits such access. On occasions customers park perpendicular to the front of the building ignoring the delineated parallel parking spaces in front of the building. Respondent has agreed to place a solid concrete curb along the building side (west side) of the parallel parking spaces and remove the yellow concrete stop blocks now in place that may be unintentionally inviting customers to park perpendicular to the building. The Department's expert, Michael Tako, testified that perpendicular parking in front of the building could result in vehicles on SR 555 having to slow down for vehicles that are backing out of those perpendicular parking spaces onto SR 555, creating a hazard on SR 555 known as stacking. However, there was insufficient evidence to establish facts to show that stacking actually occurred or that there was any safety or operational problem being created on SR 555 by customers parking perpendicular to front of the building rather than parking in the two parallel parking spaces in front of the building. There was no engineering study presented that had been conducted subsequent to the issuance of the permit substantiating any safety or operational problem on SR 555 resulting from the failure of the Respondent to comply with signings and pavement markings of the site plan or any of the special provisions of the permit or from customers parking perpendicular to the building rather than in the parallel parking spaces. Construction on SR 555 had not been completed as of the date of the hearing. However, Respondent agreed that construction was at the stage where the driveway and parking area could now be resurfaced and restriped without substantial damage to the striping, pavement markings and signings due to construction activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order requiring the Respondent to: comply with the placement of signs as shown on the site plan attached to the permit including those signs required for the First Avenue connection; (b) comply with the pavement markings for traffic flow as shown on the site plan attached to the permit, including those necessary for the First Avenue connection and direction for entrance to the green area; (c) pave any surface necessary to comply with the pavement markings provided for in (b) above, including that necessary for the First Avenue connection and to allow necessary pavement markings for traffic flow into the green area but not to include the green area; (d) restripe the parallel parking spaces in front of the building and place a solid curb on the immediate west side of the parallel parking to replace the curb stops now in place; (e) stripe the perpendicular parking spaces that abut the south end of the building where pavement presently exists; (f) place the necessary signs at the entrance to the green area so that customers will be aware of the additional parking inside the fenced green area and; (g) remove whatever portion of the chain link fence is necessary to allow reasonable entrance to and exit from the green area. It is further recommended that Respondent be allowed sufficient time to complete the above, not to exceed 60 days unless the Respondent wishes to resurface the entire driveway area including the First Avenue connection and any parking area that is presently paved. In that event, it is recommended that Respondent be allowed 90 days. It is further recommended that Respondent not be required to pave any area that is to be used for parking including the green area and that adjacent to the green area that does not already have existing pavement. RECOMMENDED this day 12th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0673 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. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1-7, 10-13, 16-18, 20, and 21 are adopted in substance as modified in Findings of Fact 1 through 21 of the Recommended Order. Proposed findings of fact 8 and 9 are covered in the Preliminary Statement. Proposed findings of fact 14, 22 and 24 are rejected as not being supported by competent substantial evidence in the record. Proposed findings of fact 19 and 23 are rejected as being argument rather than findings of fact. Proposed finding of fact 15 goes to the weight to be given to Tako's testimony and is not a finding of fact per se. The Respondent Proposed Findings of Fact. The first two sentences of Respondent's introductory paragraph under "Findings Of Fact" are covered in the Preliminary Statement. The balance of the introductory paragraph and unnumbered paragraphs 2 - 6 are presented as restatements of Tako's and Davis' testimony and not as findings of fact. However, this testimony has been adopted in substance as modified in Findings of Fact 1 - 21 of the Recommended Order and where it has not been so adopted it is rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Ben Watts, Secretary Department of Transportation ATTN: Diedre Grubbs Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Francine M. Fflokes, Esquire Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Stephen W. Moran, Esquire Moran & Tileston 1738 East Edgewood Drive Lakeland, Florida 33803
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
The Issue The issues in this case are: (1) whether Petitioner has standing to bring this action; and if so, (2) whether Respondent properly denied his application for a driveway/connection permit.
Findings Of Fact On February 24, 1998, Petitioner submitted a Driveway/Connection Application, Number 98A3940018 to Respondent. Petitioner's application sought a permit to construct a driveway/connection to a proposed retail sales office project for Lot 13, Block 396, Avolon Beach Subdivision, in Santa Rosa County, Florida. The site of the proposed project is located at 2996 Avolon Boulevard (State Road 281), between the I-10 exit ramp and San Pablo Street. STANDING Petitioner entered his name on the application as owner of the subject property. Petitioner signed the application as owner with title to the property. He signed the application certifying that he was familiar with the information contained in the application and that to the best of the applicant's knowledge and belief, the information contained therein was true and correct. Petitioner did not fill out a section of the application entitled, "Are You An Authorized Representative?" Respondent relied on Petitioner's certification that he was the owner of the property and processed his application. During the hearing, Petitioner initially testified that he bought the subject property in February of 1998. There was no driveway connection from Lot 13 to Avolon Boulevard in February of 1998. Petitioner did not have a copy of the deed to the subject property with him at the hearing. He admitted on the record that a deed indicating his ownership interest was not filed with the public records in Santa Rosa County. He also admitted that no such deed existed. Petitioner claims that the land was under contract but "had not gone to closing yet." Petitioner did not have a copy of the contract to offer as an exhibit at the hearing. Respondent produced copies of two deeds for the subject property at the hearing. The most recent of these deeds was recorded on July 14, 1997. It indicates that the property is owned by the George H. Moss Trust, George H. Moss, Trustee. Petitioner's post-hearing exhibit consisted of two documents. The first is a Memorandum Agreement dated February 2, 1998. The memorandum indicates that Tim Oden, Agent for 3/0 Partners, LLC, paid $500 in earnest money as a deposit for the purchase of the subject property belonging to George Moss, with the closing to take place on or before April 15, 1998, contingent on specified terms of purchase. One of the terms of purchase requires proof of legal access to San Mateo Avenue which is the subject of this proceeding and has not been fulfilled. Additionally, Petitioner did not present evidence that any of the other conditions of the contract have been fulfilled. The Memorandum Agreement is signed by Tim Oden, Agent for 3/0 Partners, LLC, as buyer and George H. Moss as seller. The second document included in Petitioner's post- hearing exhibit is a copy of a cancelled check in the amount of $500 payable to George Moss for the subject property and signed by Tim Oden. Mr. Moss endorsed the check for deposit. Petitioner's name does not appear anywhere on the Memorandum Agreement. There is no direct evidence showing Petitioner's relationship to Tim Oden or 3/0 Partners, LLC. He has not demonstrated that he has an ownership interest in the property. PERMIT APPLICATION In a Notice to Deny Permit dated March 23, 1998, Respondent advised Petitioner that his application was denied. Respondent's notice gave the following reasons for denying the application: The Limited Access Right of Way and fence were not shown on the plans. A field review found this proposed connection within the Limited Access Right of Way. This section of State Road 281 is a Limited Access Facility, in conjunction with I-10. Access to the property can not be permitted through the Limited Access Fence or across the Limited Access Right of Way. Access rights were acquired for the construction of I-10 and the interchanges. Access can not be permitted to the ramps or ramp tapers. On or about April 7, 1998, Petitioner provided Respondent with a revised Driveway Permit Drawing showing the Limited Access Right-of-Way and fence. Petitioner admitted in a telephone conversation with Respondent's permit engineer that a previous owner had been compensated for the loss of access to Avolon Boulevard when the I-10 interchange was constructed. The subject property did not have an existing driveway connection when the I-10 interchange was constructed. The Shell service station and the used car lot, which are located at the Avolon Boulevard interchange, had existing driveway connections before the interchange was constructed. Similarly, driveway sites near the intersection of Davis Highway, in Escambia County, and I-10, were in existence at the time the I-10 interchange ramps were constructed. These existing driveways were allowed to remain after construction of the ramps. New driveway connections would not be permitted at these locations. Permits will not be granted if these properties undergo a substantial change in use which requires a change in permitting. Petitioner's description of the location of the off ramp, ramp taper, and limited access area of Avolon Boulevard are erroneous. The proposed driveway for the subject property is located in the off ramp lane. Federal highway regulations require control of connections beyond the ramp terminal of an interchange for at least 100 feet in urban areas and 300 feet in rural areas. This control for connections to crossroads must be effected by purchase of access rights, providing frontage roads, controlling added corner right-of-way areas, or denying driveway permits. Petitioner's proposed driveway would be located within 300 feet from the end of the taper of the off ramp. Federal regulations prohibit the issuance of a new connection permit for a site within that area. Additionally, Petitioner's proposed driveway connection would cause a safety and operational problem on the state highway system due to its location in the off ramp of the I-10 interchange. There is no persuasive evidence that Santa Rosa County has abandoned the street which is adjacent to Lot 13 and the Shell station, 32nd Avenue. Petitioner did not establish that there is no legal access from Lot 13 to Avolon Boulevard other than by issuance of the subject permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order dismissing Petitioner's appeal for lack of standing and/or dismissing Petitioner's appeal on its merits. DONE AND ENTERED this 14th day of December, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 14th day of December, 1998. COPIES FURNISHED: Brian F. McGrail, Esquire Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Hugh Allen Oden 8612 Westview Lane Pensacola, Florida 32514 James C. Myers, Agency Clerk Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent violated Sections 112.313(7)(a) and 112.3143(3), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, the Respondent, T. Butler Walker, served as a member of the Jefferson County Commission and was subject to the Florida Code of Ethics for Public Officers and Employees, Part III of Chapter 112, Florida Statutes. The Respondent was charged by sworn Complaint with violations of Sections 112.313(6), 112.313(7)(a), and 112.3143(3), Florida Statutes. The Florida Commission on Ethics, after preliminary investigation, found there was probable cause to believe that the Respondent violated Section 112.3143(3), Florida Statutes, by voting to pave the road which runs in front of his home, and Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a company, (White Construction Company) doing business with his agency. The Respondent has served on the Jefferson County Commission since 1953. His home is located on Peter Brown Lane and he owns approximately 653.5 acres of land along and contiguous to the road, either individually or jointly with his wife. The property outlined in yellow on Exhibit 1 to the Respondent's deposition is the property along or contiguous to Peter Brown Lane. Both of his sons own homes located on Peter Brown Lane, and they own approximately 184 acres of land in the same vicinity. Most of the land which the Respondent and his relatives own along the road is used for farming and raising cattle. In addition, 9 of the 13 residences on the road belong to the Respondent's relatives. In 1987, Peter Brown Lane was a County-maintained dirt road about 4.5 miles long. Peter Brown Lane connects County Road 259 with the Thomas City/Walker Springs Road. The road is used by logging trucks from the St. Joe Paper Company. The St. Joe Paper company owns more land along Peter Brown Lane than the Respondent or his relatives. The Respondent pays taxes on a portion of Peter Brown Lane that crosses his property. He has never deeded a right of way to the county for that portion of land which is crossed by the road. Nevertheless, the Respondent does not claim ownership of any portion of Peter Brown Lane. It is his understanding that once a county maintains a road for four years or more, then the county is deemed to own it even though the landowner may still be responsible for paying taxes on it. The late Joe Sullivan, former Jefferson County Road Superintendent, suggested to the Respondent that Peter Brown Lane be paved. Mr. Sullivan believed that the County could save money on the cost of road maintenance by paving Peter Brown Lane. At the Board of Commissioners meeting in August of 1987, the Respondent moved that Peter Brown Lane be paved for a distance of only 3.4 miles from County Road 259 toward the Thomas City/Walker Springs Road. The paving runs in front of all 13 residences on the road. The paving ends in front of the last residence on Peter Brown Lane which belongs to the Respondent's nephew, Kevin. The Respondent did not recommend paving the remaining 1.1 miles because maintenance of it had historically been very minimal due to the nature of the terrain of this section of the road. The Respondent voted for the measure, and the motion passed. The Respondent did not disclose his land ownership along Peter Brown Lane or that the road ran in front of his home. Nor did he disclose the fact that 9 of the 13 residences along the road belong to his relatives. The Respondent did not abstain from voting, and he did not file a memorandum of voting conflict after the vote. Various persons and businesses benefited from the paving of the road because Peter Brown Lane connected two other roads. The Respondent and his relatives also benefited because they lived along the road and regularly used it. After submission of bids, the County hired White Construction Company to pave Peter Brown Lane. On September 16, 1987, the Respondent voted to approve the award of the contract for paving to White Construction Company. The Respondent independently hired White Construction Company to pave his driveway and his sons' driveways. White Construction Company agreed to pave the Respondent's driveway at the same cost it was charging the county to pave Peter Brown Lane. The Respondent paid White Construction Company $15,744.73 for materials that it sold him. The Respondent spent a total of $20,338.43 to have the private paving work done. Since the paving of Peter Brown Lane, the Respondent has paid higher property taxes on his residence. Companies performing paving work are often hired by persons who live along rural roads to pave their driveways. In many cases, it would not be cost effective for a company to take its equipment out to pave a driveway if it did not already have paving work in the same vicinity. The Respondent believes that he was able to save money by using White Construction Company to pave his driveway, because White's equipment and workers were already on site. Prior to being paved Peter Brown Lane would become slick and wash out when it rained, resulting in vehicles becoming stuck in the mud and the ditches. Sometimes the road would become so washed out that the traffic was limited to one lane. Mr. Walker benefited from the paving of Peter Brown Lane. The paving provided easier access to his property, including his residence and reduced the wear and tear on his vehicles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, T. Butler Walker violated Sections 112.313(7)(a) and 112.3143(3), Florida Statutes (1987) and that Mr. Walker be required to pay a civil penalty of $2,000. DONE AND ENTERED this 19th day of January, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4270EC To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Advocate's proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-12: Accepted. Paragraphs 12-15: Rejected as constituting conclusions of law. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: The first, third and fourth sentences are accepted in substance. The second, fifth, and sixth sentences are rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Mark S. Levine, Attorney 245 East Virginia Street Tallahassee, Florida 32301 Stuart F. Wilson-Patton Assistant Attorney General Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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.
Findings Of Fact At all times pertinent to the matters in issue herein, the Respondent, Department of Transportation, was the state agency responsible for the monitoring and control of vehicular access to and traffic control on the state highways of this state. Petitioner, Pablo Sanchez, owns the property in issue. This property is a 24 x 40 foot house located on a 70 x 103.62 foot lot located at the corner of East 8th Avenue (LeJeune Road) and East 7th Street in Hialeah, Florida. LeJeune Road, depending upon the location, both has and does not have a restrictive median. At this location it does not. Mr. Sanchez currently and historically, over the 3 years he has lived in the property in question, enters and exits the property, which has no formal driveway, from LeJeune Road. By the same token, guests who visit him enter and exit the property the same way. During this 3 year period there have been no accidents or traffic problems as a result of this use even though traffic on LeJeune Road, a main thoroughfare, is heavy. There is no obstruction on or near the property to hinder visibility of either an individual exiting the property onto LeJeune Road or a driver on LeJeune Road observing anyone coming off the property. In Mr. Sanchez' opinion, a permitted driveway practically would change nothing from the current situation. The area in which the property is located is rapidly changing from residential to commercial. Mr. Sanchez is trying to have the zoning of his property changed from residential to office use. His efforts in this regard are with the City of Hialeah. If his application for zoning change is approved, it is his intention to use the house as an office for his insurance business which is currently conducted at a different location at 24th Street and LeJeune Road. The current office is located on a corner lot from which Mr. Sanchez has access onto LeJeune Road and it is his contention there have been no traffic problems at that location either. No evidence to rebut this contention was forthcoming. There are currently commercial businesses in operation on both sides of LeJeune Road between the area now being used as a business by Petitioner and the area for which he submitted his application. The majority of these enter onto LeJeune Road. Mr. Sanchez contends that the use of the property in issue as an insurance office would not generate as much traffic as either the neighboring bank or service station in the area, and if he were to receive the driveway permit for this property, he claims, the amount of traffic onto LeJeune Road from it would not be increased by any significant amount. He submitted his application and paid the $1,000.00 fee. Most of Mr. Sanchez' time is spent at his business building because his parents live at that location and when he is not working, he spends a great deal of time with them. His experience has been that he can easily go from his home to his office on LeJeune Road at any time without difficulty, and he goes up and back each day expending 6 or 7 minutes for each trip. Petitioner introduced photographs of several businesses purported to be in the area which, he claims, have commercial entrances onto LeJeune Road. Respondent entered no evidence to contradict the identity or location of the sites reflected in the photos and they are, therefore, accepted as offered. One of them is a bank which, he contends, has been in operation for approximately 10 years. Another is a service station which has been in operation for "a considerable amount of time." This facility was there before Petitioner arrived in the area. Another business depicted, Marina Insurance, opened approximately two years ago. The facility used to be a residence and Mr. Sanchez does not know when or if a driveway permit was issued for that property. Another service station in the area was opened "many years ago" and a store for wedding gowns was opened "seven or eight years ago." The photographs fail to show any traffic, however, either in front of, exiting, or entering the properties. Mr. Sanchez claims they are active businesses and have been contributing to traffic on LeJeune Road for many years. In the absence of evidence to contradict that assertion, it is accepted. Mr. Sanchez' contentions were supported by his son, Joel, who is in business with his father and who used to live in the house in question with his father, his mother, his wife and his two children. With four adults living there, three cars were frequently in use, and all usually entered and exited the property from LeJeune Road. On occasion, they would come in or exit from 7th Street, but between 80 and 85% of the time the LeJeune Road access was utilized, primarily because the property faces on LeJeune Road. Visitors to the property usually park to the right of the front door, and so far there has been no problem getting on or off of LeJeune Road. The younger Sanchez confirms his father's testimony that entrance onto or exit from LeJeune Road from either the current residence or the current business property has not been a problem over the years, and he sees no traffic hazard. According to Joel Sanchez, LeJeune Road is no longer a residential street. He confirms his father's statement that new businesses are constantly going in and all seem to have been able to get driveway access onto LeJeune Road. The older businesses have had access to LeJeune for a long time and there appears to have been no problem with traffic. The property in issue here became a problem only when the Sanchezes tried to rezone it. Notwithstanding the fact that at the residence they already use an access onto LeJeune Road, according to the city zoning officials, if the property were to be converted into a business use property, a formal access onto LeJeune, to accommodate 8 parking spaces on the property, would be necessary. The only way 8 parking spaces could be placed onto the existing property would be to place the entrance and exit onto LeJeune Road. From a practical standpoint, the only change would be the actual paving of access ramps out to the highway instead of driving onto and off the property across the lawn as is the current practice. The number of the customers the business would bring to the new site would not be heavy, no more than 6 or 7 per day. This would be a maximum, Petitioner claims, because the nature of the insurance business he is conducting is changing to that which would reduce to an even lesser amount the traffic required. Most of the business customers are now renewals who deal with the company by mail, and the only traffic would be new business. In that regard, they are changing more to commercial lines of insurance, dealing with businesses, which does not have a large office visit rate. Neither of the Sanchez men have any training in traffic management or safety, but both sincerely feel their proposal will not increase traffic or pose a risk to traffic safety in the area. Debora Moran Rivera, a traffic engineer with the Department's Miami District is familiar with the instant permit application and, in fact, reviewed it when it was submitted. When first received by the District, the application was sent to the field for comments. It was determined that a 25 foot radius exit was required. Photographs were received along with the comments and based on the review by both the field office and the District office, it was determined that the application here was not consistent with the rules of the Department governing permits of this nature. As a result, on February 26, 1991, a Notice of Intent to Deny the application was sent to Mr. Sanchez in which the reason for denial was the availability of access to the State Highway from another public road, (East 7th Street). Sometime thereafter, Ms. Rivera was contacted by Joel Sanchez who asked for a formal denial which could be appealed and thereafter, a formal denial letter dated March 19, 1991 was sent. This letter indicated the Department rules limited access to a point at least 115 feet from the nearest connection, East 7th Street. The denial decision was based on information provided by the field operations office to whom the application was sent for verification. The decision to grant or deny is a joint one made by several individuals whose identity is dependant upon where the property in question is located. Mr. Pego, Ms. Rivera's supervisor and Ms. Rivera were the individuals who made this decision based upon the input from the staff in the field. In this case, the field information consisted of a statement based upon his visit to the site and two photographs. Based on this information along with that provided by the applicant, the decision to deny was made. Admittedly no traffic study of the area in question was made by either party. Further, in evaluating the application, however, Ms. Rivera did not look at any other driveway permits for property in the immediate area. She thinks she went out to visit the site before the official denial letter was sent out on March 19, 1991 but she does not recall what the business characteristics of the area were like. While she is generally familiar with the area, she does not recall the specifics. Based on the evidence presented, nothing was put before the undersigned to demonstrate the insufficiency or impropriety of the Department's evaluation and decision making process and it is accepted that the process was sufficient and adequate. There is some indication from the testimony of Petitioner that he had called the District office to request a Spanish speaking representative come out to the property. In response, the District sent out a Mr. Montez. According to Mr. Sanchez, Montez initially told him that the application would probably not be approved because the property fronted on LeJeune Road. However, Sanchez claims Montez later changed his mind and indicated the application would probably be granted because of the small nature of the business. The evidence on this point is unclear as to whether the visit by Mr. Montez is the site visit described by Ms. Rivera. No evidence was presented to clarify this, but in any case, there is no showing that Montez had any authority to commit the Department to a position. His opinions, therefore, are irrelevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case denying Petitioner's application for a connection from his property located at 700 East 8th Avenue, Hialeah, onto East 8th Avenue, (Lejeune Road). RECOMMENDED in Tallahassee, Florida this 29th day of January, 1992. ARNOLD H. POLLOCK 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 29th day of January, 1992. COPIES FURNISHED: Juan Carlos Perez, Esquire 4770 Biscayne Blvd. Miami, Florida 33137 Michael A. Bienstock, Esquire 25 SE 3rd Avenue, Suite 1240 Miami, Florida 33134 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Respondent. The Respondent, Gerald S. Rehm, served as Mayor of the City of Dunedin, Florida, from 1965 to 1972. The Respondent served in the Florida Senate from 1980 to 1984. Among other duties, the Respondent served on the Senate Transportation Committee. The Respondent served as a Florida state representative from November 4, 1986, through November 6, 1990. (Stipulated Fact). At all times relevant to this proceeding, the Respondent served as a public official. During the time that the Respondent served as a Florida state representative, he served on the House Transportation Committee and House Appropriations Committees. At some time during his service as a Florida state representative the Respondent asked to be removed from the House Transportation Committee. This request was granted. The Top of The Bay Road Improvement Task Force. The Top of the Bay Road Improvement Task Force (hereinafter referred to as the "Task Force"), was a private, not-for-profit organization incorporated on June 14, 1985. It was dissolved in late 1990. (Stipulated Fact). The original and primary purpose of the Task Force was to expedite the widening of State Road 580/584 (hereinafter referred to as the "580/584 Project"). The Task Force endeavored to obtain donations of right-of-way along the 580/584 Project corridor to accomplish its goal. Over time, the purpose of the Task Force expanded to include the tracking of road development in northern Hillsborough and Pinellas counties, to the extent that other roads and projects impacted on the 580/584 Project. (Stipulated Fact). The 580/584 Project included roads of Hillsborough and Pinellas Counties and the State of Florida. Therefore, Hillsborough and Pinellas Counties and the State were involved in the 580/584 Project. The Task Force hoped to insure that all three government bodies were communicating about the 580/584 Project. The Task Force believed that the 580/584 Project would not be completed until as late as the year 2010. By providing coordination and obtaining donations of right-of-way along the 580/584 Project corridor, the Task Force hoped to facilitate the completion of the 580/584 Project sooner. The Task Force was aware that if needed right-of-way along the 580/584 Project corridor was donated, it could take only a day to complete the donation instead of taking as long as two years to acquire the same right-of-way by eminent domain. Acquiring right-of-way along the 580/584 Project corridor by eminent domain was inconsistent with the purpose of the Task Force. The poor condition of highways 580 and 584 was adversely affecting business interests along these highways. The Task Force was formed to correct this problem as soon as possible. The completion of the 580/584 Project was also necessary for some land owners along the 580/584 Project corridor to be able to obtain DRI (Development of Regional Impact) permits necessary to develop their property. When first conceived, it was believed that the Task Force would be needed only for a short period of time. The Task Force was continued beyond the period of time originally contemplated because it was believed that the government agencies involved would believe that they were being "watched" if the Task Force remained active. The Task Force received most of its funding from large land owners and developers. (Stipulated Fact). About 12 to 15 major landowners, businesses and developers provided most of the Task Force's funding. The goals of the Task Force were the goals of those who contributed the Task Force's funds. The Respondent's Involvement with the Task Force. The Respondent served as the executive director of the Task Force from its inception in 1985 until November 13, 1989. (Stipulated Fact). The Respondent's involvement with the Task Force began before, and continued after, he became a Florida state representative. The Respondent's duties as executive director of the Task Force included working with the Florida Department of Transportation (hereinafter referred to as the "Department") to ensure that donations of right-of-way adjacent to State Road 580/584 met the Department's legal and technical requirements. (Stipulated Fact). The Respondent's duties as executive director of the Task Force also included gathering information about the Department's progress and decisions pertaining to the 580/584 Project, so that the proper right-of-way donations could be obtained. (Stipulated Fact). The Respondent characterized his relationship with the Task Force as that of a "consultant." The Respondent spoke with the Task Force's general counsel prior to becoming a Florida state representative. Based upon his discussion with the general counsel, the Respondent concluded that he had not been doing anything on behalf of the Task Force that would cause a conflict of interest if he continued his involvement after becoming a Florida state representative. The nature of the Respondent's activities on behalf of the Task Force did not materially change after he became a Florida state representative. He continued to perform his duties in an effort to assist the Task Force to achieve its goals of seeing a quick conclusion of the 580/584 Project which was in the interest of the Task Force and those who had created it, and the other goals of the Task Force. The Respondent's duties as executive director of the Task Force also included production of what were known as "Task Force Monitor Maps." A man by the name of Dick Vaugier, however, also was involved in the preparation of the Task Force Monitor Maps and may have actually performed the physical creation of the maps. The maps tracked the status of all road projects and provided projected completion dates and other information of interest to the Task Force. (Stipulated Facts). Some of the information required to produce the Task Force Monitor Maps was obtained by the Respondent from the Department. (Stipulated Fact). Task Force Monitor Maps underwent several revisions as road projects progressed. (Stipulated Fact). The Respondent provided copies of the completed Task Force Monitor Maps to the Department. (Stipulated Fact). Copies of the maps were also kept at an office of the Respondent where interested persons could review them. The Respondent's Contacts with the Department of Transportation. During the period of time that the Respondent served in the Florida House of Representatives, he had numerous contacts by telephone and in person with employees of the Department concerning the 580/584 Project. The Respondent had three contacts with Gene Dorzback, Department Assistant Project Development and Environmental Administrator, concerning the 580/584 Project. Ms. Dorzback worked in the Department's District 7. Ms. Dorzback worked for the Department from May, 1988, to October, 1990. All of her contacts with the Respondent were during the period of time that he was a Florida state representative. The Respondent discussed the 580/584 Project with Ms. Dorzback on June 15, 1989, during a public hearing on the 580/584 Project. During this conversation, the Respondent expressed his disapproval and frustration over the alignment of the 580/584 Project which the Department had established prior to the public meeting and which the Department had discussed with the public during the public hearing. The Respondent also questioned Ms. Dorzback about why the Department had decided on the alignment presented. Alignment of a road project involves the decision of which side(s) of the road additional right-of-way necessary to complete a road-widening project will be taken from and the amount of right-of-way necessary. Alignment of the 580/584 Project was determinative of the right-of-way which would have to be donated in order to achieve the Task Force's goals. The Respondent's concern over the alignment for the 580/584 Project was over the fact that the alignment would require obtaining right-of-way from property owners that had not agreed to donate right-of-way, and ignored some property owners that were willing to donate right-of-way. Although the Respondent did not specifically suggest that a particular alignment be used by the Department, he did suggest that the Department consider using the right-of- way which property owners were willing to donate. In order for the Department to accept this suggestion the Department would have been required a change the alignment of the 580/584 Project. At some time after the June 15, 1989, public hearing, the Respondent also telephoned Ms. Dorzback and inquired whether she had been provided with certain survey information concerning the 580/584 Project from the District 7 Survey Administrator, Larry Jones. The information involved property of owners who were willing to donate right-of-way. Although the Respondent did not specifically suggest any particular alignment, it was evident from the Respondent's comments to Ms. Dorzback that he believed that accepting donated right-of-way would speed up completion of the 580/584 Project. Ms. Dorzback explained to the Respondent why she did not believe that completion of the project would necessarily be speeded up by accepting donated right-of-way. The third conversation Ms. Dorzback had with the Respondent involved an inquiry from the Respondent concerning whether she had received the survey information he had previously inquired about. At the time of the Respondent's contacts with Ms. Dorzback, she was aware that he was a Florida state representative. Ms. Dorzback was consequently intimidated by the Respondent's criticisms. She was not initially aware of his connection with the Task Force. The Respondent also had contacts with Teresa Estes. Ms. Estes was a Project Manager in the Department's District 7 Project Development and Environmental Section. The Respondent's contacts with Ms. Estes occurred approximately once every three or four months over a two-year period of time when the Respondent was a Florida state representative. Some of the contacts Ms. Estes had with the Respondent involved the 580/584 Project. The contacts took place in the Department's offices. During the Respondent's contacts with Ms. Estes, he inquired about, and they discussed, the progress on an environmental study required for the 580/584 Project. The Respondent requested information from Ms. Estes concerning the 580/584 Project, which she provided to him. The approximately $210,000.00 cost of the environmental study for the 580/584 Project was paid for by two corporations, the Millford Corporation and the Hollywood Corporation. The weight of the evidence failed to prove if these corporations were involved with the Task Force. Ms. Estes knew that the Respondent was a Florida state representative when some of the contacts she had with him occurred. The Respondent informed Ms. Estes that he was a Florida state representative, that he was interested in the 580/584 Project and that he worked with the Task Force. The evidence, however, failed to prove when the Respondent told Ms. Estes that he worked with the Task Force. The Respondent also had at least three or four contacts with James Edwards. Mr. Edwards was the District 7 Public Transportation Manager for the Department from February, 1987, through the present. The Respondent contacted Mr. Edwards by telephone or in person to inquire about the status of the 580/584 Project, right-of-way donations, and other issues or aspects germane to specific projects in the area of the 580/584 Project. Mr. Edwards had at least one other meeting with the Respondent which did not involve the 580/584 Project. Mr. Edwards had to gather information concerning the 580/584 Project prior to his meetings with the Respondent and he provided that information to the Respondent. The Respondent also met three or four times with Ronald G. Pscion, the Department's District 7 Director of Planning and Programs. During one of the Respondent's contacts with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project's work program and how the work on the 580/584 Project was scheduled. Mr. Pscion knew that the Respondent was working with property owners that wanted to donate right-of-way for the 580/584 Project and that one donation was dependent on a particular construction job on the 580/584 Project being completed by fiscal year '91-92. During another contact with Mr. Pscion, the Respondent wanted to insure that the Department was aware of other developments in the area of the 580/584 Project which could impact the project. The Respondent wanted to be sure that traffic in the area could be handled by the 580/584 Project. During a third conversation with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project. The Respondent requested that Mr. Pscion let him know if there was any change in the work program for the 580/584 Project. The Respondent provided a copy of the Task Force Monitor Map prepared for the Task Force to Mr. Pscion. The Respondent also had contacts with Mr. Pscion concerning other road projects of the Department. Mr. Pscion was aware that the Respondent was a Florida state representative but was not aware of his relationship with the Task Force. The Respondent also had more than ten contacts with John H. DeWinkler, the Department's District 1 Director of Production. Mr. DeWinkler worked with the Respondent to achieve the Task Force's objective of trying to speed up the 580/584 Project without having to go through a lengthy process to complete the project. The property owners that were willing to donate right-of-way were entitled to certain rights. Mr. DeWinkler wanted to insure that those rights were not violated. Contacts concerning the 580/584 Project were made by the Respondent with Mr. DeWinkler at or near the time that what is now the Department's District 7 was separated from the Department's District 1. That split occurred in approximately October, 1988, after the Respondent became a Florida state representative. Therefore, some of the Respondent's contacts with Mr. DeWinkler took place when the Respondent was a Florida state representative. The Respondent had at least two contacts concerning the 580/584 Project with Joseph R. Brandenburg. These contacts occurred while the Respondent was a Florida state representative. Mr. Brandenburg was a Department District 7 Right-of-Way Surveyor from September, 1986, through July, 1988. One contact between the Respondent and Mr. Brandenburg involving the 580/584 Project was a meeting which was also attended by Mr. DeWinkler and Derrick Vardy, the Department's District 1 Right-of Way Administrator. During this meeting the Respondent inquired about areas along the 580/584 Project corridor for which right-of-way donations were still needed. As a result of this meeting, Mr. Brandenburg was to provide right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. The other contact which Mr. Brandenburg had with the Respondent was a telephone conversation during which the Respondent inquired about the information he was to be provided as a result of the meeting described in finding of fact 53. Mr. Brandenburg, subsequent to his two contacts with the Respondent, provided the right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. This information was to facilitate the donations of certain right-of-ways along the 580/590 Project corridor. Between February, 1988, and February, 1989, the Respondent also had three contacts with Larry R. Jones. Mr. Jones at that time was Department District 7 Right-of-Way Surveyor. The first contact between the Respondent and Mr. Jones took place shortly after Mr. Jones was employed by the Department. Mr. Jones and the Respondent argued about the width of the right-of-way needed for the 580/584 Project. Their difference of opinion was clarified by Mr. Jones' supervisor. The second contact between the Respondent and Mr. Jones occurred after a telephone call from the Respondent informing Mr. Jones that he was going to come by and pick up title search information concerning the 580/584 Project which was being provided by Pinellas County, Florida. The Respondent did come by and pick up the information. During the third contact between the Respondent and Mr. Jones, they discussed the impact of Murphy Act Deeds on the 580/584 Project. The Respondent suggested that any interest the State might have pursuant to the Murphy Act Deeds should be released to property owners who donated right-of-way for the 580/584 Project. Mr. Jones explained to the Respondent why this should not be done. Mr. Jones testified as to what a Murphy Act Deed, which is also known as "TIITF Reservation", is and the reason why the Department could not take the action the Respondent was suggesting, as follows: Basically a TIITF Reservation was something out of the '30's and '40's. If a tax collector seized a piece of property and sold it for the back taxes, they would reserve a strip of land for road purposes. And in this case 584 had some of these TIITF Reservations on them. That land is usable by the State Road Department. We have to go to DNR to get an easement, not the property owner. We don't pay for them. And by releasing the remainder over from what the PD&E study called for, we'd be in a position if we had to have more right-or-way, we would be back in an acquisition condemnation scenario, we'd be dealing with the property owners instead of DNR. Lines 2-15, page 103, Transcript of the September 4, 1991, Formal Hearing. At the time of the contacts with the Respondent, Mr. Jones was aware that the Respondent was a Florida state representative. The Respondent also represented to Mr. Jones that he was working for the Task Force. James G. Kennedy was the District Secretary for the Department's District 7 from 1987 until May, 1990. From 1984 until 1987, Mr. Kennedy was the Urban Office Director for the Department's District 1. Prior to and after the Respondent became a Florida state representative, Mr. Kennedy had numerous contacts with the Respondent about various transportation matters, including the 580/584 Project. During the Respondent's contacts with Mr. Kennedy after the Respondent became a state representative, the Respondent inquired about the 580/584 Project. In particular, the Respondent asked for information concerning the manner in which the Department acquired right-of-way and the progress on the project. Mr. Kennedy made his staff available to the Respondent. The degree of support given to the Respondent was in part attributable to the Respondent's position as a Florida state representative. The degree of contact Mr. Kennedy and his staff had with the Respondent was significant enough that Mr. Kennedy reported the situation to the Department's Secretary at the time, Kay Henderson. Secretary Henderson merely suggested that Mr. Kennedy use his best judgement to handle the matter. Mr. Kennedy was aware of the Respondent's involvement with the Task Force. Mr. Kennedy had been told by the Respondent that the Respondent was the leader of the Task Force. Mr. Kennedy was concerned enough about the Respondent's relationship with the Task Force that he asked the Respondent whether the Respondent thought there was a conflict of interest with his position as a Florida state representative. Mr. Kennedy was aware that the purpose of the Task Force was to obtain donations of right-of-way along the 580/584 Project corridor to speed up the completion of that project. Mr. Kennedy made his Department available to the Respondent to assist the Respondent in his efforts to insure that the donation of right-of-way along the 580/584 Project corridor was handled properly. The Respondent provided Mr. Kennedy with up-to-date Task Force Monitor Maps. Derrick Vardy was a Department District 1 Right-of-Way Administrator. Mr. Vardy had two telephone conversations with the Respondent and approximately two or three face-to-face meetings with him concerning the 580/584 Project. Some of these contacts occurred in August, 1987. Mr. Vardy attempted to assist the Respondent with documents needed to acquire donations of right-of-way for the 580/584 Project. All of the information which the Respondent obtained from employees of the Department was information which was available to the public. The information was obtained, however, on behalf of the Task Force and not in the Respondent's capacity as a Florida state representative or as a member of the public. The Respondent's contacts with the Department while he was a Florida state representative were made to further the goals of the Task Force and were made on behalf of the Task Force. Compensation. Beginning in 1985, when the Respondent began to perform services for the Task Force, and continuing until November, 1986, the Respondent was paid a consulting fee for his services as executive director of the Task Force. After the Respondent's election as a Florida state representative in November, 1986, the payments from the Task Force that had been made directly to the Respondent were made to Gerald S. Rehm and Associates, Inc. Gerald S. Rehm and Associates, Inc., is a closely held corporation, the stock of which was owned by the Respondent. From 1985 until sometime during 1987, the Task Force paid $2,000.00 a month to the Respondent and later Gerald S. Rehm and Associates, Inc. The amount paid by the Task Force to Gerald S. Rehm and Associates, Inc., was increased in 1987 to $3,000.00 and the corporation began "absorbing expenses" according to the Respondent. The payments to Gerald S. Rehm and Associates, Inc., were made in payment for services of the Respondent. Those services were the same services the Respondent performed for which payments were made directly to the Respondent before he become a Florida state representative. The weight of the evidence failed to prove that the payments made by the Task Force to Gerald S. Rehm and Associates, Inc., were merely reimbursements of expenses of the corporation. The Respondent testified that the payments his corporation received while he was a Florida state representative were reimbursements of expenses. This testimony was not credible. The Respondent characterized the payments he had received prior to his election as a Florida state representative as consulting fees. He did not characterize the payments he received before his election as a reimbursement of expenses. The Respondent admitted that his services were essentially the same before and after he became a Florida state representative. Therefore, since his services did not change and the amount of the payments did not change after he became a Florida state representative, it is not credible to believe that the payments after he became a Florida state representative were merely intended as a reimbursement of expenses. Additionally, the weight of the evidence failed to prove that there was any connection between the expenses that the Respondent or his corporation incurred and the amount of the payments he or his corporation received. Finally, the Respondent testified that the increase from $2,000.00 per month to $3,000.00 per month which occurred in 1987 was to cover expenses. Therefore, based upon the Respondent's own testimony, only $1,000.00 of the $3,000.00 monthly payments were for expenses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Gerald S. Rehm, violated Section 8(e), Article II, of the Constitution of the State of Florida, as alleged in Complaint No. 90-50. DONE and ENTERED this 13th day of November, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER 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. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. General 1 3-4. 2 1. 3-4 2. 5 5. B. Top of the Bay Task Force 1 6. 2 7. 3 8. 4 9-10. 5 12. 6 13. 7 11 and 13. 8 7 and 9-11. C. The Respondent's Relationship with the Task Force 1 14. 2 Hereby accepted. 3-4 17. 5-6 21. 7 22. 8 23-24. 9 15. 10 19-20. 11 73-75. 12 76-77. 13 75. D. Respondent's Contacts with the Department of Transportation 1 See 26-27. 2 27-29. 3 28-29. 4 32. 5 30. 6 See 30. 7 31. 8 See 32. 9 26. 10 33. 11 33. The weight of the evidence failed to prove when Ms. Estes was employed with the Department. It is not, therefore, possible to tell whether his contacts with Ms. Estes were during his term as a Florida state representative based upon when he served. Ms. Estes did testify, however, that she knew the Respondent was a Florida state representative. Based upon this testimony, it has been concluded that the Respondent had contacts with Ms. Estes while he was a Florida state representative. 12 34-35. 13 38. 14 39. 15 39-41. 16 See 39-41. 17 Not relevant. The evidence failed to prove who the "developer" was or what relationship, if any, the "developer" had with the Task Force or the Respondent. 18 41. 19 42. 20 42-43. 21 44. 22 45. 23 See 48. 24 46. 25 49. 26 Hereby accepted. 27 50. 28-29 51. 30-31 50. 32 52. 33 52-54. 34 53. 35 54. 36-37 55. 38 56. 39 See 56-57. 40 58. 41-42 59. 43 60. 44 59. 45 61. 46 66. 47 Hereby accepted. 48 62-63. 49 64. 50 68. 51 Hereby accepted. 52 69. 53 70. 54-55 69. 56 See 71. 57 Hereby accepted. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3. The evidence proved that the Respondent dropped the title of "President." The evidence also proved that the Respondent's duties after becoming a Florida state representative did not materially change. 2 14. 3 6. 4 7. 5 7 and 10. 6 See 7. 7 15-16. 8 The meeting referred to in this proposed finding of fact is not relevant. It occurred before the Respondent became a Florida state representative. See 50, 52-53 and 69. 9 17. 10 See 25-27 and 30-32. See 28-29 with regard to the 6th and 7th sentences. 11 33-34 and 36. 12 39-40 and 71. 13 52-55. The last sentence is not relevant. 14 42, 48 and 71. See 43-45. 15 56-59. 61-63 and 71. The 4th and 5th sentences are generally true, but see 64-67. Although correct (except the value of the right-of-way, which the weight of the evidence failed to prove), not relevant to this proceeding. 18 See 21-24. But see 16-20. 22 and hereby accepted. 47, 68 and hereby accepted. 21 13. 22 74-77. 74. The 2d sentence is not supported by the weight of the evidence; see 80. 74. See 25-71. The last two sentences are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 19. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, FL 32399-1050 Mark Herron, Esquire Bonnie J. Williams J. B. Donnelly, Esquire Executive Director Akerman, Senterfitt, Eidson Commission on Ethics & Moffit The Capitol, Room 2105 216 South Monroe Street Post Office Box 6 Suite 300 Tallahassee, FL 32302-0006 Post Office Box 10555 Tallahassee, FL 32302-2555
The Issue The issue is whether the City of Naples' plan amendment adopted by Ordinance No. 03-10305 on December 17, 2003, is not in compliance for the reasons alleged in Collier County's Petition for Administrative Hearing (Petition).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 2003, the City began the planning process to adopt an amendment to its Plan which would restrict, but not prohibit, the construction of traffic overpasses or flyovers within the City. Under the process in place for adopting amendments, a City planner initially drafts a proposed amendment; the draft amendment is presented in the form of a recommendation to the City Planning Advisory Board (Board); and the Board then forwards a recommendation to the City Council for a final decision. On July 2, 2003, the City staff submitted a Report to the Board recommending that a new Policy 1-10 be added to the Plan's Transportation Element, which read as follows: Due to impacts on traffic and aesthetics, the City shall not permit construction of road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. On July 9, 2003, the Board considered the Report and recommended that the language in the amendment be slightly amended by adding the word "vehicle" before the word "road" to clarify the kind of overpass addressed by the amendment. The Board then submitted a recommendation to the City Council that it adopt the following amendment: Due to impacts on traffic and aesthetics, the City shall not permit construction of vehicle road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. On October 8, 2003, the proposed amendment was transmitted to the Department for its preliminary review. After reviewing the proposal, on December 12, 2003, the Department issued a two-page letter which served as its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department offered three comments regarding the proposed amendment: that the City had not "defined the circumstances under which an overpass or flyover would be allowed by the City"; that "issues of this nature are best addressed through the use of existing intergovernmental coordination"; and that the City was encouraged to resolve this matter through the MPO and other intergovernmental coordination avenues available to the City and County. However, there were no objections to the language in the amendment. (A comment in the ORC is advisory in nature, while an objection represents an assertion by the Department that there are inconsistencies in the proposed amendment.) On November 17 and 21, 2004, the Council submitted letters to the City indicating that it "had no adverse comments" to the amendment. After the City adopted the amendment, though, the Council decided to revise its recommendation to the Department and suggested that the amendment be slightly modified by adding language requiring the City to consider alternative planning solutions "in a timely manner." However, the Council supports the overall substance of the amendment. On December 17, 2003, the City approved the amendment without further changes. The amendment was then forwarded to the Department for its compliance determination. On February 13, 2004, the Department published its Notice determining that the amendment was in compliance. Since 1989, and at a cost of several million dollars, the County has been involved in the planning process for infrastructure needed to alleviate traffic demands at or near the intersection of Golden Gate Parkway and Airport-Pulling Road. One quadrant of the intersection lies within the City; the remaining portion of the intersection lies within the County. During this process, and based on recommendations by outside consultants, the County determined that a vehicle overpass (known as the Golden Gate Overpass) would be the most effective traffic planning solution. Alleging that the new amendment was designed solely for the purpose of prohibiting the construction of that overpass, on March 5, 2004, the County filed its Petition challenging the new amendment. As set forth in the parties' Joint Pre-Hearing Stipulations, the County raises three broad grounds for finding the amendment not in compliance: that the amendment is not based on the best available data and analyses, as required by Florida Administrative Code Rule 9J-5.005(2); that the amendment is inconsistent with other provisions within the Plan; and that the amendment lacks coordination with the County's Plan, in violation of Section 163.3177(4), Florida Statutes. The undersigned has rejected as untimely a contention raised for the first time by the County in its Proposed Recommended Order that the amendment is vague and lacks meaningful and predictable standards.2 Finally, because the Department and the City both contest the standing of the County to bring this action, that issue must also be resolved. Standing To demonstrate standing, the County, as an adjoining local government, must prove that the plan amendment "will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within [its] jurisdiction." § 163.3184(1)(a), Fla. Stat. Therefore, the County must prove that the plan amendment prohibits the construction of the Golden Gate Overpass and that this prohibition will result in the substantial adverse impacts described in the statute. On its face, the amendment restricts, but does not prohibit, the construction of vehicle overpasses within the City. That is, the amendment merely states a preference on the part of the City for "alternative planning solutions" before a vehicle overpass may be permitted. This general expression of policy preferences cannot be read as a blanket prohibition on overpasses, or a specific direction to deny any request by the County that the overpass be constructed. If the amendment is found to be in compliance, the precise manner in which it will be implemented is unknown. These details, however, are not the subject of this dispute. In any event, until the City actually implements the amendment and makes a decision that another alternative planning solution exists, there can be no "substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment," as required by the statute. In support of its standing claim, the County argues that if the amendment is found to be in compliance, the City may implement the amendment in an arbitrary manner. Assuming this to be a legitimate concern, there can still be no "substantial impacts" until a decision is made by the City. The County also points out that in a meeting of the City Council on April 21, 2004, or four months after the amendment was adopted, the City determined that the amendment applies to the Golden Gate Overpass, and that as of that date, the County had still not "satisfied the requirement" that it explore alternative planning solutions. The City did not vote, however, to prohibit the overpass. That post-adoption determination by the City in no way alters the finding that the amendment will not produce substantial impacts on the increased need for publicly-funded infrastructure. As noted above, these impacts, if any, will not occur until the amendment is implemented in a manner adverse to the County's interests. Accordingly, the evidence supports a finding that the County is not an affected person and lacks standing to file this challenge.3 Although this ruling is dispositive of the case, for the purpose of rendering a complete Recommended Order, the County's compliance contentions will be addressed below. The Plan Amendment The goal of the Transportation Element of the Plan is as follows: Provide an efficient, balanced, attractive, and safe multimodal system of transportation facilities in accordance with recognized safety standards, various land use demands and environmental considerations unique to the City of Naples. Under the goal, the Plan contains eight adopted objectives. Objective 1 reads as follows: Protect the character of existing and future residential neighborhoods by maintaining the integrity of the City's identified collector and arterial circulation plan and, where possible, manage traffic flow to protect the residential neighborhoods. Prior to the enactment of the amendment, the Plan contained nine adopted policies to implement this objective. These policies further Objective 1 by requiring that the City ensure the protection of neighborhoods when assessing transportation improvements. For example, street improvements should be evaluated to "protect residential neighborhoods" (Policy 1-1); the City shall "require landscape buffers between residential neighborhoods and arterials" (Policy 1-2); and the City should enhance flow on major roads to divert traffic from "neighborhood collectors and local streets" (Policy 1-4). The amendment adds a tenth policy under Objective 1 to read as follows: Due to impacts on traffic and aesthetics, the City shall not permit construction of vehicle road overpasses or flyovers in favor of alternative planning solutions that will improve the long-term traffic circulation patterns in the City. The new policy is intended to apply to road improvements throughout the City, and not just the Golden Gate Overpass, and would require that "feasible alternative planning solutions" be explored before a vehicle road overpass is permitted. The policy is not intended to act as an absolute prohibition on overpasses in general or any one specific overpass, but only "restricts construction of vehicle road overpasses . . . in the City" if other alternative planning solutions exist. By requiring this type of analysis, the City can further Objective 1 by "protect[ing] residential neighborhoods." Golden Gate Parkway is an east-west arterial roadway that traverses both the City and the County. The County is responsible for maintaining and improving the entire length of Golden Gate Parkway, including that portion lying within the City. Airport-Pulling Road is a north-south thoroughfare that traverses both the City and the County. The two roads intersect around two miles north of the Naples Municipal Airport in the northeastern corner of the City. Three of the four quadrants of the intersection are within the County, while the fourth is within the City. Data and Analysis In the context of the requirement that plan amendments be supported by data and analyses requirement, there are two types of amendments: mandatory and aspirational. A mandatory amendment is one that is required by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Conversely, an aspirational or qualitative amendment is not required by statute or rule. The most common example of an aspirational amendment is one which prohibits skyscrapers or imposes a height restriction on structures within the boundaries of a local government. The County contends that the plan amendment is not supported by data and analyses, as required by Florida Administrative Code Rule 9J-5.005(2). That rule requires that all policies "shall be based upon relevant and appropriate data and the analyses applicable to each element." When the amendment package was transmitted to the Department on October 8, 2003, it contained no supporting data and analyses. The City's submission, however, was consistent with the Department's long-standing view, supported by the evidence here, that if an amendment is aspirational in nature, it does not require supporting data and analyses. This is because an aspirational amendment is merely a policy choice by a local government which has a limited or cosmetic effect. Or as stated by Department witness Gauthier, Policy 1-10 is "conditional in nature . . . and it would rely on . . . some subsequent analysis and decision-making [by the City]." In other words, "the scenarios and what direction the policy take will really depend on activities and assessments by the City, which happen later." Therefore, it requires little, if any, data and analyses. Here, the restriction on overpasses is an aspirational amendment, and it represents a policy choice on the part of the City that expresses disfavor for overpasses and flyovers and a preference for at-grade improvements. The amendment does not excuse the City from complying with any of the substantive planning requirements imposed by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. The only change accomplished by the amendment is to favor at-grade improvements as the primary way to address level of service standards and access points and other substantive planning requirements. It also represents the City's primary choice when planning for transportation needs with other regional and state entities. Given the nature of the amendment, there is no need for "appropriate and relevant data and analysis" within the meaning of the rule. Notwithstanding the fact that no data and analyses were required, at the time the amendment was adopted, the City had numerous traffic studies indicating that there are often alternatives to overpasses.4 Information was also available which indicated that overpasses can have negative aesthetic impacts on neighborhoods; that overpasses can cause traffic impacts by moving congestion from one intersection to another; and that improvements which improve long-term vehicle flow in the City will also impact the County. Besides the foregoing data, the City had received citizens' concerns about the traffic impacts of intersections and their desire to seek alternatives to overpasses before authorizing one to be built. Assuming arguendo that data are required to support an aspirational amendment, it is at least fairly debatable that the amendment is supported by adequate data and analyses. Consistency With Other Plan Provisions The County next contends that the amendment is inconsistent with portions of the Vision 2005 Work Plan (Vision 2005); certain introductory language in the Future Land Use Element (FLUE); Objective 6 and Policies 2-1, 5-4, and 8-1 of the Transportation Element; Policies 4-5 and 5-8 of the Capital Improvements Element; the Transportation Element Support Document; and the Goal, Objective 1, and Policies 1-2 and 1-6 of the Intergovernmental Coordination Element. All of the cited provisions generally relate to the City's responsibility to provide a safe and efficient transportation system, or they encourage the City to cooperate with the County and other entities in the planning process. For the following reasons, it is at least fairly debatable that Policy 1-10 does not conflict with the above-cited portions of the Plan. Vision 2005 Work Plan Vision 2005 (which was adopted in 1998) is a part of the Plan which identifies "desired future conditions through vision statements," and a "series of action plans [eleven strategies] to carry out this vision." The County contends that the amendment conflicts with Goal 3 and Objective 3-6 of Vision 2005. The cited goal provides that the "City should enhance its cooperative relationship with the County," while Objective 3-6 states that one of the City's objectives is to have "positive opportunities for the County to enhance its motivation to cooperate with the City." The County has failed to show that Policy 1-10 conflicts with the goal or objective in any respect. Therefore, the County's contention is found to be without merit. Future Land Use Element The County next contends that the amendment conflicts with certain language found in the Introduction portion of the FLUE. The precatory portion of the FLUE describes the general purposes of the FLUE, the principal implementation mechanisms, and the broad functions of the goals, objectives, and policies contained therein. There are, however, no goals, objectives, or policies within the Introduction itself. The County asserts that the amendment conflicts with that part of the Introduction which states that the goals, objectives, and policies within the FLUE should provide guidance for future growth and redevelopment based on the Vision 2005 strategy to "strengthen City and County cooperative planning programs." Assuming that consistency with this language is required under Section 163.3184(1)(b), Florida Statutes, there is nothing in Policy 1-10 that conflicts with this vision. Transportation Element The County also contends that the amendment conflicts with Objective 6 and Policies 2-1 and 5-4 of this element. Objective 6 requires that the City "[a]ssure intergovernmental consistency by an annual review of plans and programs with Collier County . . . ." Nothing in Policy 1-10 interferes with this objective. Policy 2-1 requires that, "based on a system wide study," the City "develop an efficient transportation network that encourages the diversion of traffic from local streets to collectors and arterials." Because Policy 1-10 will require system-wide studies to determine whether overpasses, or some other alternative, are the appropriate choice, the amendment is consistent with Policy 2-1. Policy 5-4 provides that [w]ith the cooperation of Collier County's Department of Transportation, [the City shall] limit direct access onto Goodlette- Frank Road from abutting properties by requiring properties fronting other roadways to use those for access where it is a safe alternative to access on Goodlette-Frank Road. This policy routes traffic from properties abutting Goodlette-Frank Road onto other roads. Because the County has failed to show any logical nexus between Policy 5-4 and Policy 1- 10, it is found that Policy 5-4 has no application to this controversy. Finally, Policy 8-1 requires that the City provide support data and analyses to the MPO as necessary to assist in the development of a public transportation system. Because this policy deals with public or mass transportation such as buses, and not vehicle transportation, Policy 8-1 has no application here. Transportation Element Support Document The City next contends that the amendment conflicts with certain language found in the Transportation Element Support Document. That document is attached to the Plan and is designed to fulfill the Transportation Element data and analyses requirements of Florida Administrative Code Rule 9J-5.019. Among other things, the lengthy analyses of the data contains language stating that the intersection for the Golden Gate Overpass is "under Collier County's jurisdiction"; that there will be "increased traffic" in the area of the overpass; that a new interchange to be constructed at Interstate 75 and Golden Gate Parkway (several miles east of the proposed overpass) will generate "heavy traffic"; and that the City "should enhance its cooperative relationship with the County." Assuming that consistency with a support document is required in a compliance determination, the County has not demonstrated that Policy 1-10 conflicts with the cited language. Capital Improvements Element The County also contends that the amendment conflicts with Policies 4-5 and 5-8 in the Capital Improvements Element of the Plan. Policy 4-5 requires the City to Revise the Capital Improvements Program in the future to include projects and programs listed in the Comprehensive Plan which are in addition to those needed to maintain level of service standards or to correct deficiencies if not correctly funded. (Emphasis added). The County contends that the amendment conflicts with the underscored portion of the policy. However, this policy simply requires revisions to the City's capital improvements program to maintain level of service or to correct deficiencies. There is nothing in Policy 1-10 that interferes with the ability of the City to revise its program in the future to satisfy those concerns. Policy 5-8 generally requires that the City coordinate its capital improvements program with all other agencies that provide public facilities to the City and that it participate in the plans of any agency providing public facilities within the City. However, Policy 1-10 does not prevent the City from coordinating its projects with other state agencies, or prevent the City from participating in the plans of other agencies or local governments that provide public facilities. Intergovernmental Coordination Element The County further contends that the amendment conflicts with the Intergovernmental Coordination Element in three respects. First, it argues that because the amendment is inconsistent with the Collier County Plan, it is inconsistent with Objective 1 of this element. That objective requires in part that the City's Plan "should be consistent with the plans of Collier County, the School Board, and other units of government without regulatory authority over land use." Nothing in Policy 1-10 prevents the development of these mechanisms, nor does anything in the policy prevent addressing how the Plan impacts adjacent jurisdictions. Policy 1-2 of the same element requires that the City monitor the County's comprehensive planning efforts to ensure coordination and reduce conflicts between the two local governments. Nothing in Policy 1-10 interferes with those monitoring requirements. Policy 1-6 requires the development of joint planning agreements and land use studies between the County and the City to increase the consistency of land use within two miles of the City/County line. Again, nothing in the challenged policy conflicts with this requirement. Lack of Intergovernmental Coordination Finally, the County contends that because Policy 1-10 "is incompatible with the overpass designated in the Collier County Growth Management Plan, the 1989 interlocal agreement, [and] the Grey Oaks PUD, DRI, and DO," it violates Section 163.31771(4)(a), Florida Statutes. That statute essentially requires that there be "coordination" between the City's Plan and the comprehensive plan of the County (and other adjoining local governments, if any). The City provided a copy of the amendment to the County and received no objections. Moreover, nothing in Policy 1-10 changes either the objectives of the City to coordinate its Plan or the policies that define the relationship of the Plan to the plans of other local governments. While the City and the County may disagree over whether an overpass should be built, there is no evidence that Policy 1-10 affects the intergovernmental relations structures established by the two comprehensive plans. Stated differently, Policy 1-10 does not alter or remove objectives and policies in the Plan regarding coordination with the comprehensive plans of adjoining governments, nor does it conflict with the County's Plan, the MPO, or interlocal agreements of adjoining governments. In the same vein, the County argues that the City cannot express a preference for at-grade improvements without violating intergovernmental coordination because the overpass is in the MPO and the County's Plan. The inclusion of a project in the MPO and County's Plan, however, does not compel the City to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its own Plan. See Department of Community Affairs et al. v. City of Fort Myers, Case No. 89-2159GM, 1992 WL 880106 at *31 (DOAH Jan. 7, 1992, Admin. Comm. April 8, 1992). Other Contentions All other contentions raised by the County not discussed herein or in the Endnotes have been considered and rejected as being without merit.
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 determining that the plan amendment adopted by Ordinance No. 03-2003-45 on December 17, 2003, is in compliance. DONE AND ENTERED this 24th day of August, 2004, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of August, 2004.
The Issue Is it necessary for Respondent, the Department of Transportation (Department), to close two driveways on the property of Petitioners, Joe David and Barbara Jean Riggins? If the driveways are closed, will the property affected by the driveway closings still have reasonable access to the State Highway System?
Findings Of Fact The parties stipulated to the following facts: On October 4, 2016, the Department sent Joe David and Barbara Jean Riggins a Notice of Intent to Modify Driveway Connection. Mr. and Ms. Riggins received the Notice of Intent to Modify Driveway Connection on October 8, 2016. The Notice of Intent to Modify Driveway Connection related to the property located at 964 State Road 441 Southeast, Okeechobee, Florida. The approximate 0.787 acre property has been held by the Joe David and Barbara Jean Revocable Trust since September 24, 2012. The property is not developed, with the exception of a boat ramp aligned with the property’s westernmost driveway that is scheduled to remain open. The remainder of the property consists of asphalt and a bare concrete slab from a demolished structure. State Road 441 is a part of the state highway system. Mr. and Ms. Riggins own two adjacent lots located at 964 State Road 441, Southeast, in Okeechobee County, Florida. The Okeechobee County Property Appraiser identifies them as lots 13 and 14. The lots are vacant. Three driveways exit those properties. The driveways have been in existence since at least 1992. The driveways have not gone a year without use. The Department is an agency of the State of Florida. It regulates access to the state highway system to ensure safe, efficient, and effective maintenance and operation of the roads. The Department is planning a resurfacing project for State Road 441 from State Road 78 to Southeast 30th Terrace in Okeechobee County. That approximately two-mile stretch of road runs past the Rigginses’ property. The Department intends for the project to enhance roadway safety through improvements to the roadway surface, driveway modifications, sign and pavement markings, elevation corrections, bridge retrofits, and guardrails. The planned resurfacing project also includes modifications and improvements to driveways along State Road 441 and installation of a bicycle lane adjacent to the Rigginses’ land. The project is a significant change to the roadway and the roadway design. As part of the resurfacing project, the Department conducted an evaluation of modification of all driveways along the project corridor to improve motorist, bicyclist and pedestrian safety and operation of the roadway. When the Department plans significant changes in roads, it conducts an evaluation to determine whether existing driveways meet design standards in conformance with access management act standards. Mr. Leon, Engineer of Record and Project Manager for the project, conducted the evaluation. He recommended closing the eastern and middle driveways on the Rigginses’ two lots. The Department gave the Rigginses’ notice of the plan to close the two driveways. Department representatives reviewed the plan and the reasons for it with the Rigginses, by telephone and in person. The Department maintains that closing the driveways is necessary to improve safety and compliance with the Department’s design standards. Because of their age, the driveways are “grandfathered” and without the substantial changes of the project would not be subject to current design standards. Most recently, the Rigginses leased the lots to Edison Power Company for parking utility line trucks. The utility company used the two lots as if they were one. The lease expired December 31, 2016. If Edison Power were to resume use of the lots, there is sufficient room for its trucks to maneuver and to enter and exit the property using only the westernmost driveway. The eastern driveway is 16 feet wide at its throat where the driveway meets the road. The throat of the middle driveway is 27 feet wide. The throat of the western driveway is 35 feet wide. This driveway lines up with a boat ramp on the other side of the lot. Each driveway is substantially less than 1,320 feet apart from the adjacent driveway. The Department has design standards for driveway dimensions. For rural roadways, like the one involved here, the size range for driveway throats is 24 feet to 36 feet. Department Rule 14-97.003 classifies roadways and establishes driveway spacing for each class. State Road 441 is a Class 5 roadway. Its speed limit is 45 miles per hour. The rule requires driveways on the roadway to be spaced 1,320 feet apart. The spacing requirement is important for reducing driver confusion and wreck potentials caused by multiple turns onto or from the road in quick sequence. The project design work included examining existing driveways and their effect on traffic flows and interaction with motor vehicle, bicycle, and pedestrian traffic on State Road 441. The Department reasonably focused on limiting conflict points created by driveways and bringing affected existing driveways into compliance with current access standards. Closing the two easternmost driveways will reduce conflict points on the roadway caused by vehicles entering and leaving the property. The activity increases risks of crashes for motor vehicles and for bicyclists who will use the newly created bike lanes and vehicles entering and leaving the property. As a rule, limiting the number of driveway connections promotes better traffic movement and an increased level of safety and mobility for the system as a whole. The westernmost driveway on the Rigginses’ property will provide reasonable access to the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Transportation, enter a final order approving the closure of the easternmost and middle driveways on the property of Respondents, Joe David and Barbara Riggins, as part of the Department's State Road 441 Resurfacing Project. DONE AND ENTERED this 28th day of July, 2017, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 28th day of July, 2017.
The Issue Whether the Map of Reservation filed by Tampa-Hillsborough Expressway Authority in July, 1988 is unreasonable or arbitrary, and has the effect of denying General Homes of Florida, Inc. a substantial portion of the beneficial use of the property owned by General Homes within the limits of the Map of Reservation.
Findings Of Fact Petitioner was consolidated back to its parent corporation, and now operates as General Homes Corporation which is a large builder of single family homes in the Tampa area. The property affected by the Map of Reservation filed by Respondent was acquired by Petitioner in 1985 and comprises some 24 acres which have been platted into 96 lots known as Eastbrook Subdivision. Eastbrook Subdivision is the third housing development commenced by Petitioner in unincorporated northwest Hillsborough County. The first such subdivision started in 1980 was called Carrollwood Springs. That project was successful and when that development was nearly completed additional property in the vicinity was purchased and the Eaglebrook Subdivision was started. That project was of a similar size to the Carrollwood Springs Subdivision and, it too, was successfully developed and sold. The success of these developments led Petitioner to the purchase, in August of 1985, of the 24 acres to be developed as the Eastbrook Subdivision which is similar in size to the two former developments. At the time this purchase was made there were two proposed alignments of the northwest expressway, the Lake Le Clare Alignment and the Railroad Alignment. The Lake Le Clare Alignment, if adopted, would cross the Eastbrook property but the Railroad Alignment would not. Petitioner had closely monitored the selection process throughout 1985 and was under the impression that the Railroad Alignment would be selected for the Expressway. In 1986, the Expressway Authority selected the Lake Le Clare Alignment. However, the Map of Reservation was not filed until July, 1988. Petitioner proceeded apace with the development of the Eastbrook Subdivision by opening a sales center and five fully furnished model homes with the intention of selling single family homes in the subdivision. Weekly newspaper ads were run, billboard locations were rented and local realtor parties were hosted to draw more attention, and buyers, to the subdivision. In fiscal year 1986, General Homes spent some $300,000 in marketing efforts and sold some 56 homes in Eaglebrook closing out that subdivision. Eastbrook was opened and 16 lots were sold there. In 1987 General Homes spent over $400,000 in sales and marketing but sold and closed only 27 homes in Eastbrook. In fiscal year 1988 General Homes sold and closed 21 homes but incurred a loss of approximately $250,000. The expressway alignment was well known at this time and the public was aware the alignment would affect portions of the Eastbrook Subdivision. The Map of Reservation runs through the southern part of the Eastbrook Subdivision and Petitioner devoted most of its attention to developing the northern portion of the subdivision. However, the impending expressway and its impact on the Eastbrook Subdivision had a dampening effect on sales in this subdivision and in 1987 General Homes lost $231,000 in the Eastbrook Subdivision. In 1988, General Homes suspended all construction activities, discontinued speculative building and attempted to sell the unsold lots in the subdivision. In early 1988, General Homes sold ten lots in Eastbrock to Atlantic Homes who built homes on those lots. An option by Atlantic Homes to purchase additional lots was not exercised. Since the cessation of building activities, General Homes has held the land not sold as unproductive assets in which development costs have accrued, taxes and interest payments continue, but the lots cannot be sold for the erection of a single family home.
Recommendation It is RECOMMENDED that the Petition of General Homes of Florida, Inc. for a determination that the Map of Reservation filed by the Tampa-Hillsborough Expressway Authority is unreasonable or arbitrary and that it denies Petitioner a substantial portion of the beneficial use of its property be DENIED. DONE AND ENTERED this 21st day of June, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 21st day of June, 1989. COPIES FURNISHED: Peter J. Winders, Esquire One Harbor Place Post Office Box 3239 Tampa, Florida 33601 William C. McLean, Jr., Esquire Post Office Box 21 Tampa, Florida 33601 =================================================================
