Findings Of Fact On December 8, 1986, Respondent owned a sign that had been erected along the east side of U.S. 19 in Pasco County, Florida, approximately 51 feet from the nearest edge of the nearest through lane. U.S. 19 at this location is a part of the State Highway System. The DOT right-of-way at this location extends approximately 82 feet east of the eastern edge of the nearest northbound through lane of U.S. 19. Upon seeing the DOT violation notice posted, someone notified Respondent. Respondent had the sign removed from the DOT right-of-way within ten days of the notice of violation.
Recommendation It is RECOMMENDED that a final order be entered assessing a $75 fine against All American commercial Properties, Inc., for owning a sign on the DOT right-of-way along the east side of U.S. 19 in Pasco County on December 8, 1986. ENTERED this 22 day of July, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1987. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450 All American Commercial Properties, Inc. Attn: Shelley A. Balduf 6847 County Road 54 New Port Richey, Florida 33552 Kaye N. Henderson, P.E. Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor Turner, M.S. 58 Thomas H. Bateman, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether a directional opening Respondent constructed in the median of State Road 540 ("SR 540") at 2nd Street, Southeast, ("Second Street") in Polk County, Florida complies with the requirements of Chapters 334 and 335, Florida Statutes, and Florida Administrative Code Rules 14-96 and 97. 1/
Findings Of Fact Petitioner is a Florida corporation wholly owned by Mr. Mr. Vivian DeSousa and Mrs. Sherry DeSousa, his wife. Petitioner is engaged in the business of operating a restaurant known as Schoop's Hamburgers ("Schoop's"). Schoop's is located in Winter Haven, Florida at the intersection of SR 540 and Second Street. SR 540 is an east- west, four lane, divided arterial roadway that is known locally as "Cypress Gardens Boulevard." Second Street is a north-south, two lane, residential city street. SR 540 is part of the State Highway System, while Second Street is owned by the City of Winter Haven. Schoop's faces south toward the westbound lanes of SR 540 in the northwest corner of the intersection of SR 540 and Second Street. The east side of Schoop's abuts the southbound lane of Second Street. Second Street intersects SR 540 approximately 300 feet west of the intersection of SR 540 and 1st Street, Southeast. ("First Street"). First Street is a four lane divided highway. The southern end of Second Street forms a "T" intersection with SR 540. Second Street does not continue south of SR 540. The property to the south of SR 540 (the "Outback property") houses several businesses that face north toward the eastbound lanes of SR 540 on the opposite side of SR 540 from Schoop's. The businesses include a Boston Market, an Outback Steak House (the "Outback"), a Days Inn Motel, and a Red Lobster Restaurant. The Outback is newly constructed. The Outback and Days Inn are in the middle of the Outback property more or less at the intersection of Second Street and SR 540. The Red Lobster is east of the intersection, and the Boston Market is at the western end of the Outback property where SR 540 intersects First Street. The median that separates the westbound and eastbound lanes of SR 540 includes an opening at the intersection of Second Street and SR 540. The median opening is immediately east of both Schoop's and the Outback. Petitioner does not have an access connection permit for the median opening. Petitioner has a direct driveway connection to Second Street. Prior to modification, the median opening allowed easier access to and from Schoop's. Prior to modification, the median opening was a full opening. It allowed eastbound traffic on SR 540 to turn left across the westbound lanes of SR 540 onto the northbound lane of Second Street without the protection of a left turn storage lane eastbound on SR 540. It also allowed southbound traffic on Second Street to turn left across the westbound lanes of SR 540 onto the eastbound lanes of SR 540. The full median opening median opening allowed westbound traffic on SR 540 to turn left across the eastbound lanes of SR 540 into the Outback property without the protection of a left turn storage lane westbound on SR 540. Traffic leaving the Outback property could also cross the eastbound lanes of SR 540 and turn left into the westbound lanes of SR 540. Respondent modified the median opening in June, 1996. The modification changed the median opening from a full opening to a directional opening. The directional opening allows westbound traffic on SR 540 to turn left into the Outback property, or to make a "U" turn, from a left turn storage lane westbound on SR 540. The directional opening prevents all other turns at the intersection of SR 540 and Second Street. The directional opening prevents southbound traffic on Second Street from crossing the westbound lanes of SR 540 to turn left onto the eastbound lanes of SR 540. It prevents traffic leaving the Outback property from crossing the eastbound lanes of SR 540 to turn left onto the westbound lanes of SR 540. It also prevents eastbound traffic on SR 540 from making "U" turns on the westbound lanes of SR 540. The turns prevented by the directional opening at Second Street have been diverted to a full median opening at 3rd Street, Southeast ("Third Street") where left turn storage lanes exist in both the eastbound and westbound lanes of SR 540. Eastbound traffic from Schoop's can turn left onto SR 540 by first turning left onto Second Street and proceeding one block to Third Street. Westbound traffic from the Outback property can turn left onto SR 540 by first turning right onto SR 540 and making a "U" turn at Third Street. The directional opening was reasonably necessary to eliminate traffic hazards caused by queuing at the intersection of First Street and SR 540. Queuing occurs when vehicles are backed up, one behind the other, by traffic control devices at intersections. Respondent conducted a traffic operations and safety evaluation to determine whether it was safe and efficient to maintain a full median opening at the intersection of SR 540 and Second Street. The evaluation included field reviews and a review of police accident reports. The City of Winter Haven provided substantial input into the evaluation because the City has jurisdiction over the side streets impacted by the median modification. The evaluation found that queuing of westbound vehicles on SR 540 created a traffic problem several times each day. Queuing of westbound traffic on SR 540 extended far enough eastward to block the intersection at Second Street during 12 of the 57 signal cycles in the noon peak hour and during 29 of the 56 signal cycles in the p.m. peak hour. Queuing could not be reduced by modifying the traffic signal at First Street to add "green time" for westbound traffic on SR 540 and reduce "green time" for north-south traffic on First Street. Re-timing the traffic signal would result in increased delay for north-south traffic to unacceptable levels. The signal at the intersection at First Street and SR 540 was operating near capacity. Queuing of westbound traffic on SR 540 created a traffic hazard for both westbound and eastbound traffic. Queuing did not always occur simultaneously in both westbound lanes of SR 540. Vehicles could be queued in either the curb lane or the median lane while vehicles in the other lane continued in motion. The traffic hazard was greatest when queuing occurred in the median westbound lane of SR 540. Queued vehicles in the median lane tended to leave a "courtesy gap" that allowed eastbound vehicles on SR 540 to make a left turn across both westbound lanes or to make a "U" turn into the westbound curb lane of SR 540. Vehicles entering the "courtesy gap" did not have the sight distance needed to see westbound vehicles in motion in the curb lane of SR 540 and complete the turn safely. Queuing of westbound traffic on SR 540 created additional traffic hazards for eastbound traffic. Left turns and "U" turns from the eastbound median lane of SR 540 frequently stopped traffic in that lane. The result was to increase queuing for eastbound traffic or to increase lane changes by eastbound vehicles not using the median opening. Respondent was unable to construct a directional opening at the intersection of SR 540 and Second Street that included a left turn storage lane for eastbound traffic on SR 540. The distance between Second Street and First Street is not sufficient to accommodate a left turn storage lane. Any left turn storage lane Respondent could have included in the directional opening would not have been long enough to accomplish its purpose. The additional traffic created by the addition of the Outback to the Outback property exacerbated the traffic hazards caused by the full median opening at Second Street. Those hazards are substantially reduced by diverting left turns and "U" turns to Third Street.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's challenge to the median modification. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
The Issue The issue is whether a penalty should be imposed on Pettegrove Equipment for driving a truck over a bridge when the truck weighed more than the posted bridge weight limit.
Findings Of Fact Raymond S. Cran drove a loaded dump truck owned by Pettegrove Equipment over a bridge on State Road 850 which crosses over Florida's Turnpike on September 26, 1990. The truck weighed 69,100 pounds. The truck was a straight truck, not a tractor trailer combination. The bridge which Mr. Cran drove across is a low limit bridge. Signs were posted in five places on the approaches to the bridge of the 26 ton limit for straight trucks. The first is at the intersection of State Road 850 and East Highland Pines Drive, which states "Weight Limit Restriction Ahead." One mile from the bridge at the intersection of Green Meadows Road is a second sign which states "Weight Limit" and has silhouettes of a straight truck and of a tractor trailer combination, showing a 26 ton limit for the straight truck and a 38 ton limit for the tractor trailer combination (tractor trailers have a higher limit because their weight is distributed differently). Similar signs are posted one half mile from the bridge, two tenths of a mile from the bridge, and at the foot of the bridge. Officer Joseph Barkas, a Department of Transportation Motor Carrier Compliance Officer, stopped Mr. Cran and prepared the Load Report and Filed Receipt describing the incident. The Respondent did not dispute that the truck was 17,100 pounds overweight, nor that the penalty for crossing the bridge based on that weight is $865, as shown on the Load Report and Field Receipt. Pettegrove Equipment disputes the fine because it's driver misunderstood the weight limit signs on the approach to the bridge. The silhouette of the straight truck is much shorter than the silhouette of the tractor trailer combination. Mr. Cran believed that the 26 ton limit for a straight truck applied to only small trucks, such as pickup trucks, and not to a large dump truck like the one he was driving. This contention is unpersuasive. Ordinary pickup trucks are incapable of carrying loads any where near 26 tons. Mr. Cran's interpretation is simply unreasonable. The limitations for straight trucks were clearly posted, and were violated.
Recommendation It is RECOMMENDED that a final order be entered by the Department of Transportation sustaining the fine of $865 assessed against Pettegrove Equipment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. COPIES FURNISHED: Vernon Whittier, Esquire Assistant General Counsel WILLIAM R. DORSEY, JR. 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 4th day of June 1992. Florida Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ann Porath, Esquire Wellington Country Plaza Suite 209 12773 Forrest Hill Boulevard West Palm Beach, Florida 33414 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in the case is whether the Department of Transportation (Department) proposal to close a driveway connection between a state highway and property owned by the Kyriakou Revocable Trust Agreement (Petitioner) should be approved.
Findings Of Fact The Department is the state agency responsible for regulating access to the state highway system. The Department has commenced construction of highway improvements on US 19 in Pasco County, Florida. US 19 is a state highway, also identified as State Road 55. The project is known as the "US 19 Continuous Right Turn Lane Safety Improvement Project." The Pasco County portion of the project is 11 miles long, four miles of which are currently under construction. The project is intended to improve the safety of the highway by reducing the frequency of rear-end collisions, to improve pedestrian safety, and to facilitate mass transit operations. The project includes installation of a continuous right-turn lane, where feasible, as well as pedestrian sidewalks and median alterations. The addition of a continuous turn lane will allow drivers to execute right turns after leaving traffic lanes, thereby reducing the incidence of rear-end collisions. The Department is not planning to acquire additional property. The project is being constructed within existing right-of-way. The Petitioner owns a parcel of commercial property located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. The parcel has been owned since 1986 by Soterios Kyriakou and Nomiki Kyriakou, as husband and wife, who transferred ownership to the Petitioner in 2005. The parcel is platted as a single lot and is bordered to the east by US 19 and to the north by a county road, Buena Vista Lane. Two driveways connect the parcel to US 19. One of the project goals was to reduce the numerous driveways that connect private parcels to US 19. Limiting driveway connections to the highway promotes safe traffic flow. In evaluating the four-mile segment prior to design, the Department reviewed more than 200 existing connections between the highway and adjoining parcels for compliance with safety and design criteria. Driveway width and space parameters are generally based on vehicle count and highway classification. Many of the existing connections were excessively wide or insufficiently spaced and failed to comply with appropriate design-safety standards. Improperly-sized or located connections increase the opportunity for accidents between cars and with pedestrians. In order to improve highway safety, the Department focused on limiting "conflict points" and providing for additional separation where possible, while providing for continued access at the existing connections. The relevant design standards applicable to the Petitioner's parcel would normally limit the width of driveways to 24 feet and require a minimum separation of 440 feet between driveways. The driveway connections between US 19 and the Petitioner's parcel exceed the appropriate width parameters. On the east side of the Petitioner's parcel, there are two separate 40-foot wide driveway connections to US 19, divided by a 25-foot wide grassy area. The Petitioner's driveway connections are substantially closer than the 440-foot minimum requirements. The northernmost connection between the parcel and US 19 is approximately 40 feet from the intersection of US 19 and Buena Vista Lane. The southernmost connection between the parcel and US 19 is approximately 105 feet from the corner of US 19 and Buena Vista Lane. The two driveways are approximately 25 feet apart. To the north side of the Petitioner's parcel, there is an 80-foot-wide connection to Buena Vista Lane, which will not be affected by the project. Although the Petitioner's parcel is not of sufficient width to allow compliance with the spacing standards, the Department has not proposed to eliminate both connections between the parcel and US 19. Similarly, the Department has not proposed to reduce the width of the remaining southernmost connection between the Petitioner's parcel and US 19. The Department has proposed only the closure of the northerly connection between the Petitioner's parcel and US 19. Continued use of the Petitioner's existing northernmost connection to the improved US 19 would present a significant conflict point for drivers entering US 19 from Buena Vista Lane and drivers intending to enter nearby Alternate US 19, with drivers turning onto or out of the Petitioner's parcel. There is an existing stop sign on Buena Vista Lane at the intersection with US 19. Persons driving east on Buena Vista Lane execute right turns at the stop sign and travel south on US 19. After the project is completed, such drivers will likely turn south into the new continuous turn lane before merging east into through lanes. The existing northernmost driveway located only 40 feet to the south of the intersection presents a conflict point for vehicles entering onto US 19 from Buena Vista Lane. A few hundred feet south of the Buena Vista Lane/US 19 intersection, US 19 connects to Alternate US 19. Drivers intending to travel west onto Alternate US 19 begin to move towards the right lane near the area of the Petitioner's parcel. After completion of the project, such drivers will likely be moving towards the new continuous turn lane, increasing the hazard presented by the Petitioner's existing northernmost driveway. The Department performed appropriate feasibility and engineering studies prior to proposing the closure of the connection at issue in this proceeding. There was no evidence presented that would suggest the studies were inaccurate or otherwise unreliable. There were multiple opportunities for public involvement during project development as well as direct contact between each impacted owner. The Department specifically notified the Petitioner of the proposal to close the northernmost connection between US 19 and the Petitioner's parcel. On more than one occasion, project representatives met with the Petitioner to discuss the proposal. The closure of the Petitioner's northernmost connection to US 19 will improve vehicular and pedestrian safety. The southernmost 40-foot driveway on US 19 and the 80- foot Buena Vista Lane connection provide reasonable access to the Petitioner's parcel. There are no practical alternatives that would improve vehicular and pedestrian safety while maintaining reasonable access to the Petitioner's parcel from US 19. The Petitioner asserted that the closure of the northerly connection will restrict access to his parcel, will significantly decrease the fair market value of the property, and will result in a loss of tenants and revenue. There was no credible evidence presented in support of the assertions, and they have been rejected. The Petitioner also asserted that flooding of Buena Vista Lane during rainstorms cause drivers to cross his property to avoid standing water. There was no evidence presented that the closure of the northernmost US 19 connection will have any impact on the referenced driver behavior or on any existing drainage issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order approving the closure of the northernmost driveway connection located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. DONE AND ENTERED this 30th day of November, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 30th day of November, 2011. COPIES FURNISHED: Kathleen P. Toolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Soterios Kyriakou Kyriakou Revocable Trust Agreement 1010 Peninsula Avenue Tarpon Springs, Florida 34689 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Gerald B Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
Findings Of Fact The signs located one mile east of State Road 79 on Interstate 10 and one-half mile west of State Road 79 on Interstate 10 and bearing copy advertising Best Western Tivoli Inn are owned by Mr. Fleming. These signs are located within 15 feet of the right-of-way of a federal interstate highway outside an incorporated municipality or town. The copy of these signs is visible from the interstate highway. The signs do not have permits issued by the Department of Transportation attached to them.
Recommendation Based on the violation of Section 479.07, Florida Statutes, the Hearing Officer recommends that the Department of Transportation direct the owner to remove said signs. DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James Moore, Esquire Post Office Box 746 Niceville, Florida 32570 Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 Frank King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL REVIEW AND BEST WESTERN TIVOLI INN, DISPOSITION THEREOF IF FILED Petitioner, vs. CASE NO. 78-2180T FLORIDA DEPARTMENT OF TRANSPORTATION, Respondent. /
The Issue Whether Petitioner properly imposed an administrative fine against the Respondent for allowing one of its vehicles to be operated in violation of a posted load limit.
Findings Of Fact On May 2, 1992, at approximately 7:00 a.m., Petitioner, by its inspection and compliance officer, Rebecca Stalnaker, stopped the Respondent's driver, Jeffrey Leo Speak (Speak) who was operating one of Respondent's vehicles on Lumsden Road in the City of Brandon, Hillsborough County, Florida. Lumsden Road in Brandon, where Respondent's vehicle was stopped, is a low load limit roadway and signs designating the roadway as such, were properly posted. The low load limit posting is relatively new in the area. Petitioner began issuing traffic citations to the vehicular traffic on Lumsden Road for violating the posted load limits during 1992. Petitioner's weight and safety officers began enforcing the posted limits after receiving numerous complaints from residents in the neighboring area around Lumsden Road about non-compliance with the posted weight limits. Petitioner issued a series of warnings to vehicular traffic during early 1992 for vehicles which were traversing the road weighing more than the posted load limits. Those motorists were warned that after April 30, 1992, administrative fines would be imposed against vehicles which exceeded the posted load limits. Speak was unaware that Lumsden Road was a low load limit roadway and he advised Petitioners agent, Rebecca Stalnaker, of his lack of knowledge. This was so, despite the fact that agent Stalnaker followed him past one of the posted load limit signs. There are alternate routes for vehicular traffic to travel in the area of Lumsden Road including a main thoroughfare one mile to the North, i.e., State Road 60. The posted and legal weight limit for Lumsden Road is 5 tons (10,000 pounds). Respondent's vehicle had a gross weight of 50,250 pounds or 40,250 pounds over the posted limit. As a result, agent Stalnaker imposed an administrative fine of .05 per pound for each pound that Respondent's vehicle exceeded the posted limit or $2,012.50. Agent Stalnaker weighed Respondent's vehicle alongside the roadway using authorized portable scales. She followed Petitioner's usual and approved procedures for weighing vehicles. During times material, the Board has considered and ruled on eleven cases similar to the instant case. Of the eleven cases, seven drivers/owners were afforded relief in the form of waiving all fines except the minimum of $500.00 for driving vehicles with loads that exceeded the posted limits. After April 30, 1992, the Board adopted a policy indicating that no relief would be given to vehicular traffic traversing the area of Lumsden Road as the "window of opportunity" had passed for vehicular traffic to be informed of the low load limit designation on Lumsden Road. The Board has discretion to waive, modify or cancel the imposition of administrative fines levied against vehicles for exceeding the posted load limits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,006.25. 1/ DONE and ENTERED this 13th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1993.
The Issue Whether Respondent, Department of Transportation ("Respondent"), has demonstrated that Petitioner, Frank C. Kunnen, Jr., d/b/a U.S. 19 Commerce Center's ("Petitioner"), right-out driveway to U.S. Highway 19 will present a safety and operational problem following Respondent's reconstruction of Highway 19. Whether Petitioner's access to the state highway system will be reasonable if Petitioner's existing right-out driveway is closed. Whether Respondent is legally entitled to administratively close Petitioner's driveway, pursuant to Rule 14-96.011, Florida Administrative Code, and applicable Florida Statutes.
Findings Of Fact Petitioner is the owner of real property located within the city limits of Clearwater, in Pinellas County, Florida, which property abuts U.S. Highway 19 (State Road 55). It has a right-in and right-out driveway connection to U.S. Highway 19. Petitioner's current right-in, right-out driveway does not create a safety or operational problem with the existing configuration of U.S. Highway 19. Respondent is an agency of the State of Florida created pursuant to Chapter 20, Florida Statutes. Respondent regulates access to the state highway system. Respondent initially cited Rule 14-96.011, Florida Administrative Code, in the Notice as authority for the intended agency action. This Rule pertains to closure or modification of permitted driveways. At hearing on March 20, it was discovered that Respondent had intended to cite Rule 14-96.012, Florida Administrative Code, which pertains to closure or modification of unpermitted driveways that had been in existence since before July 1, 1988, the effective date of the State Highway System Access Management Act. The Rule refers to these driveways as "grandfathered." As of March 20, Respondent was not aware that Petitioner's driveway might have been permitted. In order to provide Petitioner all due process to which he was entitled, Respondent requested that the hearing be continued. After reviewing its files, Respondent indicated to Petitioner on June 28, 2001, that Respondent would be requesting an additional continuance to conduct an engineering study pursuant to Rule 14- 96.011, Florida Administrative Code.¹ Petitioner agreed to both continuances. The study was dated August 20, 2001, and was delivered to Petitioner's counsel just after that date. This study was presented as Respondent's Exhibit 5 at the resumption of the hearing on September 20, 2001. The Study sets out the essential safety and operational bases for Respondent's agency action in this case and was signed and sealed by a professional engineer registered in the State of Florida. Prior to the reconvened hearing, Petitioner did not seek to depose the author of the engineering study nor did he request documents utilized in creating the study. Petitioner decided to wait until the hearing and make a series of objections to the study's admissibility. Prior to and after the study was admitted into evidence, Petitioner's counsel conducted extensive cross-examination of the engineer who signed and sealed the study, Vibert Griffith, P.E., and his assistant in the creation of the study, Julian Parsons. Petitioner did not present any evidence of prejudice resulting from the timing of the creation of the study. Any prejudice which may be presumed was cured by Respondent's requesting a continuance specifically to search its records for evidence of a permit; Respondent's requesting another continuance to create that study; Petitioner's agreeing to both continuances; and Respondent's producing the study approximately one month prior to hearing. This gave Petitioner time to conduct discovery regarding the study, not to mention sufficient time to prepare for the hearing itself. The Notice did not state whether mediation was available in this case. However, the lack of mention of mediation in the Notice was of no prejudice to Petitioner in light of the fact that that Petitioner proposed several alternative driveway designs to Respondent, and that these alternatives had been closely studied and considered. Petitioner did not present any evidence that he had asked whether mediation was available or was denied an opportunity to mediate this case. Accordingly, any error in the lack of information regarding mediation in the Notice was harmless, and any prejudice was cured. Petitioner elicited testimony with respect to a third procedural point in this case. Rule 14-96.011(1)(e), Florida Administrative Code, states that if Respondent seeks to close a driveway, Respondent will offer to meet with the property owner or his representative on-site. As Petitioner's counsel stated during his opening remarks, however, there is a long history of litigation between Petitioner and Respondent, including two pervious mediations. Again, the unrebutted testimony at hearing was that over the last several years Respondent evaluated three alternative designs submitted by Petitioner for access to U.S. Highway 19. Petitioner did not present any evidence of prejudice in not being able to meet on-site with Respondent in this case. Any error in relation to this issue was harmless. U.S. Highway 19 runs north-south through Pinellas County, Florida and is a part of the Florida Intrastate Highway System. In the vicinity of Petitioner's property, U.S. Highway 19 has three lanes of traffic each for northbound and southbound traffic (total of six lanes). As part of the reconstruction of U.S. Highway 19, Respondent has plans to create "grade separated intersections" or "urban interchanges" at the cross street to the south and north of Petitioner's property. The cross street to the south is Drew Street, and the cross street to the north is Coachman Road. Also, just to the north of Petitioner's property, U.S. Highway 19 is elevated over railroad tracks, and will continue to be so elevated after reconstruction. In its reconstructed state, vehicles will reach mainline U.S. Highway 19 by a series of frontage roads and on and off ramps. Vehicles that stay on mainline U.S. Highway 19 will not have to stop for signals at intersections with cross streets because the mainline will travel over the cross streets. The effect of U.S. Highway reconstruction will be to create a more efficient transportation facility by improving safety and capacity. The overall improvements to U.S. Highway 19 are necessary. Although Respondent is closing Petitioner's right-out driveway to mainline U.S. Highway 19, Respondent is not acquiring any property from Petitioner. Accordingly, Respondent provided Petitioner with notice of the intended agency action and right to an administrative hearing (the "Notice"). Respondent's Proposal Respondent proposes, as part of its planned improvements to U.S. Highway 19, to provide Petitioner a right- in only entrance from a frontage road running adjacent to and parallel to U.S. Highway 19. Respondent also proposes to build a new two-way road, referred to as Access Road A, which runs north-south, parallel to U.S. Highway 19, intersects Drew Street, and from that point provides vehicles the option of traveling either north or south on mainline U.S. Highway 19, or east or west on Drew Street. Petitioner's northerly neighbor, a maintenance yard owned by Pinellas County, would also send all of its traffic, including large trucks and emergency vehicles, out Access Road A to Drew Street. Other properties, including several car dealerships, to the south of Petitioner's property would also have access to Access Road A. No other property owner, including Pinellas County, objected to Respondent's proposed access system. It is undisputed that Respondent has all of the right-of-way necessary to construct Access Road A to Petitioner's property line. During construction, the City of Clearwater will install a temporary traffic signal at the intersection of Access Road A and Drew Street. Based on a traffic study conducted by the Pinellas County MPO and endorsed by the City of Clearwater and Pinellas County, the traffic light will become permanent when construction is completed. Even if the temporary light is removed after construction, Access Road A will function properly for right turns onto Drew Street which will provide access to the northbound and southbound mainline lanes of U.S. Highway 19. This is true, even assuming that all of Petitioner's neighbors send all of their traffic out Access Road A. In addition, Petitioner's neighbors to the south have several alternate means of access to travel west on Drew Street and either north or south on U.S. Highway 19. Respondent is closing Petitioner's right-out driveway to U.S. Highway 19 because, post-construction, the driveway would be located on an on-ramp. The frontage road and on-ramp, as currently designed by Respondent, would prevent placement of a right-out driveway in such a location. It is Petitioner's position that Respondent could have designed the frontage road and on-ramp in front of Petitioner's property in such a way as to allow the safe operation of a right-out driveway in the approximate location of Petitioner's current right-out driveway. Petitioner's Proposal In support of his contention that Respondent could have designed a right-out driveway, Petitioner offered an aerial map and overlay (Petitioner's Exhibit 3), which purported to show that Respondent could have designed an on-ramp from Drew Street and an off-ramp to Coachman Road to the north in such a way as to allow Petitioner a right-out driveway. Petitioner's Exhibit 3 was a concept based upon what was referred to as the "Lochner Study" at hearing. The "Lochner Study" was a study performed by the engineering firm H. W. Lochner, and showed a right-in, right-out driveway from Petitioner's property onto a frontage road/on-ramp in approximately the same location as Petitioner's current driveway. In the past Petitioner had proposed other alternatives for access to U.S. Highway 19. Petitioner withdrew from consideration at this hearing all other alternative designs for a right-out driveway for Petitioner. The Lochner Study was undertaken with the specific purpose of determining whether needed improvements to U.S. Highway 19 could be safely constructed within right-of-way already owned by Respondent. The Lochner Study concluded that placing a driveway for Petitioner in the location shown in the study would provide "substandard operation and is very undesirable from a safety stand point." The primary reason for this conclusion was that the physical separation of northbound mainline U.S. Highway 19 and the frontage road ended south of the driveway's location. This lack of physical separation would allow vehicles on northbound mainline U.S. Highway 19 to cross over the frontage road and enter Petitioner's property, creating unsafe traffic movements. Petitioner's witnesses agreed that this lack of separation would be a safety problem. Petitioner's Exhibit 3, prepared and testified about by Reginald Mesimer, attempted to alleviate this admittedly unsafe aspect of the Lochner plan by extending the physical separator between northbound mainline U.S. Highway 19 and the frontage road/on-ramp to a point just beyond the location of where Petitioner's driveway would be. The area of physical separation is the "gore" area. In effect, this extension also would shift the beginning of the on-ramp to the point of Petitioner's driveway. Thus, the issue raised was whether the location of the on-ramp could be safely designed to co-exist with the location of the off-ramp for the next interchange at Coachman Road. The standards for determining whether this design is safe are set by the American Association for State Highway and Transportation Officials ("AASHTO"), who publish these standards in the "Green Book," known as the "Bible" of transportation engineers. In examining Petitioner's Exhibit 3, as well as the requirements of AASHTO submitted in this case, it is clear that the requirements for an on-ramp followed by an off-ramp are: (1) an acceleration area for the on-ramp; (2) a weaving area for vehicles going from the on-ramp to mainline, and for vehicles going from mainline to the off-ramp; (3) a deceleration area for the off-ramp, and (4) a queue area for vehicles at the terminus of the off-ramp. Petitioner's Exhibit 3 shows the start of the acceleration area for the on-ramp at the location of Petitioner's right-out driveway, which indicates that the on- ramp for vehicles leaving Petitioner's property would begin at his driveway. Petitioner's Exhibit 3 shows a 2,000-foot weave area, also beginning at the location of Petitioner's right-out driveway. Placing the start of the acceleration area and the weave area at the same point on an on-ramp is contrary to AASHTO design standards. The beginning of the weave area should be near the end of the acceleration area, which, on Petitioner's Exhibit 3, is supposed to be where vehicles on the on-ramp are traveling at the design speed of the highway they are attempting to enter. AASHTO places the beginning of the weaving area where the outside lane of the mainline and the inside lane of the on- ramp are separated by two feet. The weave area extends to a point where there is a twelve-foot separation of the mainline and off-ramp lanes at the next interchange. The design speed of U.S. Highway 19 is 55 miles per hour. It is uncontested that vehicles leaving Petitioner's property will be in a stopped condition prior to entering the on-ramp. Thus, looking at Petitioner's Exhibit 3, the beginning of the weave area should be placed approximately 965 feet to the north of the current location shown on Petitioner's Exhibit 3. In turn, this forces the deceleration area for the off-ramp to Coachman Road shown on Petitioner's Exhibit 3 to be shifted 965 feet to the north. Petitioner's expert testified that the off- ramp deceleration area at Coachman Road could be shifted between 300 and 400 feet to the north. Assuming this to be correct, this places the start of the off-ramp deceleration area approximately 965 feet to the north of its current location, which is 565 to 665 feet beyond the farthest point Petitioner's expert testified it could be moved. Respondent's experts also examined Petitioner's Exhibit 3 under the dictates of AASHTO. Unlike Petitioner, Respondent assumed a design speed of 50 miles per hour, and assumed that shorter distances for acceleration, weaving, and deceleration could be applied in this situation under AASHTO. Respondent's findings demonstrate that under the "Petitioner's best case scenario" the off-ramp at Coachman Road would still have to be moved approximately 600 feet to the north, which is at least 200 feet past the farthest possible shift testified to by Petitioner's expert. Moving the off-ramp would obviously require redesign and delay of the Coachman Road project to the north, already designed and funded for construction. Further, Petitioner's Exhibit 3 also did not take into account any need for increased acceleration distance on the on- ramp due to the grade of the road. For certain portions of the acceleration area of the on-ramp in Petitioner's Exhibit 3 the grade is steeper that 3 percent, and averages over 2 percent. AASHTO does not require an increase in acceleration distance where the grade is "less that two percent." AASHTO requires an increase when the grade is more than 3 percent. This is, according to Petitioner's witness, a "gray area" in AASHTO. In this situation, while AASHTO may not require a multiplier be applied to the entire acceleration distance, it would be safer for the traveling public to apply the multiplier at least to the portions above 3 percent and perhaps to the entire acceleration distance, and to acknowledge that the grade of the road militates against application of strict minimum AASHTO standard distances. Adjusting at all for grade would result in a longer on-ramp and require pushing the off-ramp at Coachman even further north, which makes Petitioner's Exhibit 3 alternative even less viable. Another factor that Petitioner's Exhibit 3 did not take into account was that a significant amount of traffic leaving the proposed right-out driveway would be fully-loaded heavy trucks both from Petitioner's property and the Pinellas County maintenance yard. The AASHTO acceleration distance of 965 feet shown in that Exhibit is for automobiles. Knowing that heavy, fully loaded trucks would be utilizing this driveway on a regular basis, the acceleration distance for such trucks reaching 55 or even 50 miles per hour would be longer than for a normal passenger vehicle. Petitioner's alternative proposal was fatally flawed in its misplacement of the weave area, and was defective in other respects such as not considering the slower heavy truck traffic or the grade of the road. Thus, it is apparent that under any interpretation of the AASHTO standards, Respondent could not safely design an on-ramp from the Drew Street area and an off-ramp to the Coachman Road interchange and provide Petitioner a right-out driveway in the approximate location of his existing right-out driveway. Based upon all the evidence presented at hearing, Respondent demonstrated that AASHTO standards preclude moving the on-ramp to the location proposed by Petitioner. Therefore, closing Petitioner's right-out driveway to reconstructed U.S. Highway 19 is mandated for safety and operational reasons. Access-Reasonableness Issues Following the reconstruction of U.S. Highway 19, the access proposed by Respondent for Petitioner's property is reasonable. An objective comparison of the alternative proposed by Petitioner and Respondent's proposal reveals that Respondent's design results in safer and more efficient access to the state highway system for Petitioner and direct access to east and west travel on Drew Street. One measurable point of comparison is the relative distance a vehicle would have to travel to reach the state highway system under Respondent's proposal versus Petitioner's. Prior to Petitioner's withdrawing from consideration all alternatives other than what was represented in Petitioner's Exhibit 3, Respondent presented testimony regarding two of Petitioner's earlier alternative concepts. These previous alternatives were referred to as Proposal One and Proposal Two. Proposal One was basically a right-out driveway in the form of an on-ramp that would have tied in to mainline U.S. Highway 19 prior to the railroad tracks. Proposal Two was a right-out driveway/on-ramp that tied into the off-ramp for Coachman Road. As far as comparing relative travel distances, both Proposals One and Two are similar to the alternative in Petitioner's Exhibit 3. For vehicles to travel north from Petitioner's property on U.S. Highway 19 in Respondent's design, vehicles travel south on Access Road A, west on Drew Street, and then south on the frontage road/on-ramp. This is a distance of .44 miles. To reach the same point using the access provided in Proposal One, Proposal Two, or Petitioner's Exhibit 3, a vehicle must travel north to the Coachman interchange, and double back south, a distance of approximately 1.45 miles. Thus, when added together, the distances for vehicles to travel north and south on U.S. Highway 19 in Respondent's design total 1.12 miles, or .33 miles less than the 1.45 miles to reach the same points using any of Petitioner's alternative driveway proposals. In addition, for vehicles that wish to travel east or west on Drew Street from Petitioner's property, Respondent's alternative is much shorter. It is .32 miles to reach Drew Street along Access Road A, and 1.6 miles to reach Drew Street from Proposal One, Proposal Two, or Petitioner's Exhibit 3. Another measurable point of comparison are conflict points, places such as intersections and merge areas where vehicles can be expected to change lanes. In Respondent's design, there are four or five conflict points to travel north on U.S. Highway 19, three or four to travel south on U.S. Highway 19, and one to travel east or west on Drew Street. Petitioner's Exhibit 3 shows two conflict points to travel north (right-out turn to on-ramp and merge to mainline), six or seven to travel south on U.S. Highway 19, and seven or eight to travel east or west on Drew Street (same as south on U.S. Highway 19 plus turn from off-ramp). For vehicles traveling north and south on U.S. Highway 19 from Petitioner's property, the number of conflict points in either Respondent's design or Petitioner's alternative are essentially even, but when travel on Drew Street is included in the comparison Respondent's design is clearly safer. A third point of comparison is that Petitioner's alternative provides one way in and one way out. Respondent's design provides two ways in and one way out. Respondent's design provides reasonable access to Petitioner's property. In comparison to Petitioner's alternative, Respondent's design provides for shorter combined travel distances. In regard to conflict points, Respondent's design is as safe as Petitioner's alternative, and safer if travel on Drew Street is included in the comparison. Finally, Respondent's design provides an additional point of ingress. Both witnesses called by Petitioner opined that the access proposed by Respondent was not reasonable, primarily because the access is not "direct." The basis of that opinion was limited to their belief that a "better" access plan, the alternative shown in Petitioner's Exhibit 3, was viable. Neither of Petitioner's witnesses knew the relative travel distances, nor did either witness testify about actual conflict points or any other possible objective points of comparison. Petitioner's witnesses' view are flawed because the alternative shown in Petitioner's Exhibit 3 is not viable. Assuming, arguendo, that Petitioner's Exhibit 3 reflected a safe design, and assuming that this access is reasonable, it would be contrary to logic to conclude that Respondent's design results in unreasonable access. The only "advantage" in Petitioner's Exhibit 3 versus Respondent's proposal is a right-out "direct" connection to U.S. Highway 19 via the on-ramp. However, comparing travel distances, conflict points, and points of ingress, Respondent's design is comparable if not superior, and thus, reasonable. Petitioner stressed that all other property owners along the U.S. Highway 19 corridor have right-in and right-out driveways on frontage roads, and that Petitioner is the only property owner required to use a facility like Access Road A for egress. Even if true, this circumstance does not in and of itself change Respondent's designed access for Petitioner's property into unreasonable access. Based upon objective criteria, Respondent's design is comparable or superior to Petitioner's alternative, and Respondent's design is comparable or superior to the access enjoyed by all other property owners in this vicinity. Engineering Study Pursuant to Rule 14-96.011, Florida Administrative Code, Respondent conducted an engineering study to examine the closure of Petitioner's right-out driveway. Normally, an engineering study is prepared prior to Respondent serving its Notice of Intent to close or alter a permitted driveway connection. The engineering study documents that there is a safety or operational problem with a particular driveway connection, and ensures that Respondent has an engineering basis to seek closure or alteration of the driveway. However, at the time this case came to hearing on March 20, 2001, Respondent was not aware that Petitioner's driveway may have been permitted. That is the reason the study was conducted during a continuance of this case and delivered to Petitioner on or around August 17, 2001. Petitioner agreed to the continuance for Respondent to conduct the study, and Petitioner had adequate time to conduct any further discovery in this case after receipt of the study. Thus, any procedural error in the timing of the study was waived by Petitioner and/or cured by Respondent. The Study does provide safety and operational bases for Respondent's agency action in this case. The study summarizes the history of the U.S. Highway 19 improvement project, discusses the current conditions, explains the proposed improvements, and reviews the safety and operational issues specific to Petitioner's right-out driveway in the post construction condition. The study also explains why two alternative right-out driveway configurations were not acceptable to Respondent. The study contains exhibits showing traffic patterns in the existing and possible future post construction conditions. The study was signed and sealed by a professional engineer registered in the State of Florida. The study did not discuss the Petitioner's alternative advocated at hearing. The reason the study did not address this concept was that at the time of its creation, Respondent did not have Petitioner's Exhibit 3. One other item not addressed was traffic accident data. Since the improvements of U.S. Highway 19 have not been constructed, there is no accident data for the right-out driveway in the post construction condition. Respondent stipulated that Petitioner's existing right-out driveway is safe, so any accident data relating to current conditions is not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order approving the closure of Petitioner's right- out driveway as part of the future constructed improvements to Highway 19 and the construction of Access Road A. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 14th day of December, 2001.
Recommendation Based on the foregoing Findings of Pact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the entire structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446
Recommendation Dismiss the application to open a public at-grade crossing at Country Club Boulevard in the Citrus Springs Community in Citrus County, Florida without prejudice. DONE and ORDERED this 22nd day of November, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James L. Shroads, Esquire 3250 S. W. 3rd Avenue Miami, Florida 33129 George L. Waas, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida Eugene R. Buzard, Esquire Seaboard Coastline Railroad 500 Water Street Jacksonville, Florida 32202 Mr. Gordan S. Burleson, Sr. Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Livingston, Esquire 3250 S. W. 3rd Avenue Miami, Florida
