The Issue Whether Respondent’s proposed modifications to Petitioner’s driveway connections provide the public with reasonable access to or from the State Highway System.
Findings Of Fact The Department, pursuant to section 334.044(14), Florida Statutes, has a duty: [t]o establish, control, and prohibit points of ingress to, and egress from, the State Highway System, the turnpike, and other transportation facilities under the department’s jurisdiction as necessary to ensure the safe, efficient, and effective maintenance and operation of such facilities. By correspondence to Petitioner dated September 23, 2019, the Department advised of its plans to modify, as part of a reconstruction and resurfacing project, certain existing driveways that connect from Petitioner’s property to US 27 and SR 60. According to the Department, the modification of Petitioner’s driveway connections “will improve safety or traffic operations on the state roadway.” The planned US 27/SR 60 interchange reconstruction (US 27/SR 60 interchange) seeks to change certain operational and design features of the two roadways. In the area of Petitioner’s property, SR 60 is classified as a Class 5 road with a posted speed limit of 45 miles per hour. The Class 5 designation is assigned to roads where adjacent land has been extensively developed and where the probability of major land use change is not high. In the area of Petitioner’s property, US 27 is classified as a Class 3 road with a posted speed limit of 50 miles per hour. The Class 3 designation is assigned to roads where abutting land is controlled to maximize the operation of the through traffic movement, and the land adjacent to these roadways is generally not extensively developed. Petitioner, since approximately 1968, has continuously owned and operated a Sunoco gas station on approximately a one-acre parcel, located at 19300 U.S. 27 South, Lake Wales, Florida. It is undisputed that the existing driveway connections from Petitioner’s property to the State Highway System have been in continuous use since 1968. According to the testimony of Department witness Leanna Schail, current Department access management standards provide that a driveway connection on a Class 5 road must be at least 225 feet from an intersection and at least the same distance from other connections. As for Class 3 roads, the access standards provide that a driveway connection must be at least 660 feet from an intersection and at least the same distance from other connections. The respective distance standards are necessary in order to facilitate the reduction of driver confusion and rear-end collisions. U.S. Highway 27, at its location nearest Petitioner’s gas station, is a north-south highway that intersects SR 60, which runs east and west. Petitioner’s gas station is located southwest of the US 27/SR 60 interchange. The parcel where Petitioner’s gas station is located appears essentially square-shaped, with the northern edge of the parcel abutting the exit ramp from SR 60. The eastern edge of Petitioner’s parcel abuts US 27. The southern edge of Petitioner’s parcel abuts Oak Avenue. The western edge of Petitioner’s parcel abuts private property. West of the “private property” is Mulberry Street, which runs north and south, and connects to the south with Oak Avenue, and to the north at the SR 60 exit ramp. EXISTING ACCESS TO AND FROM STATE HIGHWAY SYSTEM In its current configuration, eastbound motorists on SR 60 who are west of the SR 60/US 27 interchange must transition to the right to access the exit ramp which has direct access connections to Mulberry Street, Petitioner’s property (two turn-in points), and US 27 South. The Department’s witness credibly testified that the “two turn-in points” from the SR 60 exit ramp are less than 225 feet from the existing and planned SR 60/US 27 interchange and do not meet current design standards. Westbound motorists on SR 60 do not have direct access to Petitioner’s gas station. In its current configuration, southbound motorists on US 27 have direct access to a driveway connection to Petitioner’s gas station. Northbound motorists on US 27, who are south of the SR 60/US 27 interchange, properly access Petitioner’s gas station by turning left on Oak Avenue and then right onto Petitioner’s driveway connection to Oak Avenue.2 Southbound motorists on US 27 can also indirectly access Petitioner’s gas station by turning right onto Oak Avenue and then right on Petitioner’s driveway connection to Oak Avenue. In its current configuration, motorists leaving Petitioner’s gas station have right-turn-only direct access from the two driveways that connect to the SR 60 exit ramp, right-turn-only direct access to US 27 South, and indirect 2 A reasonable inference deduced from the evidence is that motorists turning left to access Petitioner’s gas station from US 27 North will be inclined, under certain conditions, to avoid Oak Avenue by driving north a short distance on the US 27 South travel lanes (i.e. in the wrong direction) so as to access that portion of Petitioner’s driveway that connects directly to US 27 South. The Department’s proposed design change to this driveway connection will lessen the probability of a motorist engaging in this dangerous driving maneuver. Additionally, the Department’s proposed redesign of this driveway connection will improve traffic movement through the interchange by enhancing bicycle and pedestrian safety. access to US 27 by turning left on Oak Avenue and then right on US 27 South. PROPOSED ACCESS TO AND FROM STATE HIGHWAY SYSTEM Beginning at a point approximately 1,000 feet west of the SR 60/US 27 interchange, the Department proposes to construct near the southern edge of SR 60 a bi-directional frontage road which will abut and run parallel to the SR 60 eastbound travel lanes. The eastern-most segment of the bi-directional frontage road will terminate at Mulberry Street. Motorists travelling east on the frontage road who desire to access Petitioner’s gas station will be able to do so by way of a one-way extension that runs from Mulberry Street east to the northwest portion of Petitioner’s property. The addition of the frontage road eliminates the second eastern-most access point to Petitioner’s property from the current SR 60 exit ramp, but still allows for direct ingress to Petitioner’s property from the new frontage road. In its proposed configuration, eastbound motorists on SR 60 who are west of the SR 60/US 27 interchange, and who desire to exit to US 27 South, will transition from SR 60 via a redesigned exit ramp which will bypass the northern portion of Petitioner’s property and take motorists to US 27 South, where they will have one direct and one indirect access point to Petitioner’s gas station. The direct point of ingress to Petitioner’s gas station will be at a point nearest to the central eastern quadrant of Petitioner’s property which abuts US 27 South. If a motorist misses this point of direct ingress, then the motorist may proceed to the indirect point of ingress by turning right from US 27 South on Oak Avenue, and then making a second right turn to access Petitioner’s property. These same access points are available to motorist travelling southbound on US 27. The totality of the evidence shows that egress from Petitioner’s property to the State Highway System has dropped from three direct access points (two onto the SR 60 exit ramp/one onto US 27 South) to only one indirect access point (Oak Avenue). Furthermore, the evidence shows that ingress to Petitioner’s property from the State Highway System has been reduced from three direct access points (two from SR 60 exit ramp/one from US 27 South) to two direct access points (frontage road/US 27 South), with no material change to the indirect access point from Oak Avenue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that the proposed modifications to the driveway connections of the J. Glenn Wright Trust property provide the public with reasonable access to or from the State Highway System, and denying the challenge of the J. Glenn Wright Trust to the Amended Notice of Intent to Modify Driveway Connection issued on September 23, 2019. 3 See Footnote two regarding concerns associated with motorists traveling northbound on US 27. DONE AND ENTERED this 13th day of February, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2020. COPIES FURNISHED: David W. Holloway, Esquire David W. Holloway, P. A. 10764 70th Avenue, Suite 6206 Seminole, Florida 33772 (eServed) Richard E. Shine, Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 (eServed)
The Issue The issue in this case is whether the Department of Transportation's (DOT) proposed award of a “design-build” contract to Prince Contracting, LLC (Prince), is contrary to the agency's governing statutes, rules or policies, or the specifications of the Request for Proposals (RFP).
Findings Of Fact DOT is seeking to award a “design-build” contract pursuant to RFP E7K24 for design and construction of additional lanes on I-75/SR 93 (I-75) in Hernando County from south of US 98/Cortez Boulevard to north of US 98/SR 50/Cortez Boulevard, and from north of US 98/SR 50/Cortez Boulevard to the Hernando/Sumter County line. The project also includes reconstruction and rehabilitation of existing I-75 lanes, replacement of the I-75 bridges over US 98/SR 50, various improvements to the interchange and its ramps, added lanes and resurfacing of a portion of US 98/SR 50 in Hernando County, and other work as described in the RFP. Middlesex and Prince are qualified design-build firms capable of performing the project tasks required by the RFP. DOT employed a two-phase process in seeking to award the contract. Phase One began with the solicitation of Expanded Letters of Interest (ELOIs) from design-build firms. The ELOIs were evaluated and scored by DOT to develop a “shortlist” of four qualified firms. Phase Two commenced with the release of the formal RFP to the four firms on the shortlist. In response to the RFP, the shortlisted firms were to submit “Technical Proposals” and “Price Proposals” to DOT. The Technical Proposals were to be scored by DOT, after which DOT was to calculate an “adjusted score” based on a formula that referenced the ELOI and Technical Proposal scores and the Price Proposals. On July 7, 2014, DOT posted an advertisement of the ELOI solicitation. The deadline for submission of ELOIs was August 1, 2014. DOT received timely ELOI submissions from seven firms. DOT scored the submissions and developed the shortlist of the four firms. Prince and Middlesex were included on the shortlist and were invited to submit responses to the RFP. According to the RFP, the DOT “Concept Plan” for the project was for the construction of a “Single Point Diamond Interchange” (also known as a Single Point Urban Interchange” and referred to herein as a “SPUI”) at the intersection of I-75 and US 98/SR 50. The SPUI concept plan was developed by an engineering firm retained by DOT that issued an “Interchange Operational Analysis Report” (IOAR) for the project. The IOAR was part of a “Project Development and Environmental” (PD&E) study, apparently required to obtain federal approval and funding of the project. The RFP included an “Alternative Technical Concept” (ATC) process which allowed a firm to submit an alternative concept to DOT for review and approval (or disapproval) prior to the deadline for submission of responses to the RFP. Upon receiving DOT approval of the alternative concept, the firm could prepare a Technical Proposal based on the ATC. The RFP provided that DOT would not disclose a proposed ATC to other bidders prior to the submission of Technical Proposals. The RFP also required DOT to issue an addendum to the RFP if an approved ATC had the effect of altering the RFP specifications. The RFP specifically addressed the process governing approval of an ATC, in relevant part, as follows: B. Innovative Aspects: All innovative aspects shall be identified separately as such in the technical proposal. An innovative aspect does not include revisions to specifications, standards or established Department policies. Innovation should be limited to Design- Build Firm’s means and methods, roadway alignments, approach to project, etc. Alternative Technical Concept (ATC) Proposals The ATC process allows innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while providing the best value for the public. Any deviation from the RFP for which the Design-Build Firms seeks [sic] to obtain approval to utilize prior to Technical Proposal submission is, by definition, an ATC and therefore must be submitted to the Department for consideration through the ATC process. Any proposed material or technology not addressed by the RFP is considered an ATC and therefore must be submitted to the Department for consideration through the ATC process. The proposed ATC shall provide an approach that is equal to or better than the requirements of the RFP, as determined by the Department. ATC Proposals which reduce the scope, quality, performance, or reliability should not be proposed. A proposed concept does not meet the definition of an ATC if the concept is contemplated by the RFP. The Department will keep all ATC submissions confidential prior to the Final Selection of the Proposer to the fullest extent allowed by law, with few exceptions. Although the Department will issue an addendum for all ATC proposals contained in the list below, the Department will endeavor to maintain confidentiality of the Design-Build Firms specific ATC proposal. Prior to approving ATC’s which would result in the issuance of an Addendum as a result of the item being listed below, the Design- Build Firm will be given the option to withdraw previously submitted ATC proposals . . . . * * * One-on-One ATC Proposal Discussion Meetings One-on-One ATC discussion meetings may be held in order for the Design-Build Firm to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria. Each Design-Build Firm with proposed changes may request a One-on-One ATC discussion meeting to describe the proposed changes. The Design-Build Firm shall provide, by the deadline shown in the Schedule of Events of this RFP, a preliminary list of ATC proposals to be reviewed and discussed during the One-on- One ATC discussion meetings. This list may not be inclusive of all ATC’s to be discussed but it should be sufficiently comprehensive to allow the Department to identify appropriate personnel to participate in the One-on-One ATC discussion meetings. The purpose of the One-on-One ATC discussion meeting is to discuss the ATC proposals, answer questions that the Department may have related to the ATC proposal, review other relevant information and when possible establish whether the proposal meets the definition of an ATC thereby requiring the submittal of a formal ATC submittal. The meeting should be between representatives of the Design-Build Firm and/or the Design-Build Engineer of Record and District/Central Office staff as needed to provide feedback on the ATC proposal. Immediately prior to the conclusion of the One-on-One ATC discussion meeting, the Department will advise the Design-Build Firm as to the following related to the ATC proposals which were discussed: The Proposal meets the criteria established herein as a qualifying ATC Proposal; therefore an ATC Proposal submission IS required, or The Proposal does not meet the criteria established herein as a qualifying ATC proposal since the Proposal is already allowed or contemplated by the original RFP; therefore an ATC Proposal submission is NOT required. Submittal of ATC Proposals. All ATC submittals must be in writing and may be submitted at any time following the Shortlist Posting but shall be submitted prior to the deadline shown in the Schedule of Events of this RFP. * * * Review and Approval of ATC Submittals * * * Approved Design Exceptions or Design Variations required as part of an approved ATC submittal will result in the issuance of an addendum to the RFP notifying all Shortlisted Design-Build Firms of the approved Design Exceptions or Design Variation(s). Such a change will be approved by the FHWA, as applicable. Prior to approving ATC’s which would result in the issuance of an Addendum as a result of the Design Exceptions and/or Design Variation, the Design-Build Firm will be given the option to withdraw previously submitted ATC proposals. (Emphasis added). The FHWA is the Federal Highway Administration. RFP also established requirements that were not to be changed other than by amendment or addenda issued by DOT. In relevant part, the RFP provided as follows: Any changes to requirements of the RFP by a Design-Build Firm must be approved by the Department through the Alternative Technical Concept (ATC) Proposal process, as described herein, prior to the information cut-off date. For this Project, the Department considers the following to be requirements of the Project that shall not be changed by the Design-Build Firms except as specifically modified by the RFP and associated addenda: * * * Provide a clear ten foot mowing strip adjacent to the right of way. * * * A Diverging Diamond Interchange will not be accepted. A Compressed/Tight Urban Design Interchange will not be accepted. The northbound exit ramp from I-75 to SR 50 shall not be shortened to exclude the portion for the future flyover. SR 50 shall consist of Concrete Pavement. * * * The SR 50 median shall be designed to and accommodate the future flyover. * * * SR 50 shall be designed with seven (7) foot Buffered Bicycle Lanes, including but not limited to, minimum twelve (12) foot wide thru and turn lanes. The median width shall not be reduced to accommodate the seven (7) foot Buffered Bicycle Lanes . . . . The concrete pavement shall be placed full width incorporating the four 12-foot thru lanes, twelve (12) foot turn lanes, seven foot Buffered Bicycle Lanes and offsets to any islands from the furthest point of the begin and end of the curb returns of the ramps east and west of SR 50 . . . . (Emphasis added). Despite the RFP’s clear declaration that “Tight Urban Interchange Designs” (TUDI) would not be accepted, both Middlesex and Prince proposed ATCs for construction of TUDIs during the ATC review period. DOT rejected the TUDI proposals. Prince also submitted an ATC proposing construction of a “Partial Cloverleaf” (PARCLO) interchange design. DOT approved Prince’s request to proceed with the PARCLO ATC. DOT issued nine addenda to the RFP prior to the deadline for submission of Technical Proposals. The deadline for submission of Technical Proposals was December 19, 2014. Prince proposed construction of the PARCLO concept in its Technical Proposal. The Technical Proposal submitted by Middlesex proposed to construct a SPUI concept referenced in the RFP. On January 29, 2015, DOT conducted a question and answer session with each firm that submitted a Technical Proposal. DOT issued three more addenda (#10, #11, and #12) to the RFP after the Technical Proposal submission deadline and allowed each firm to submit an Addendum to its Technical Proposal by March 10, 2015. On March 19, 2015, DOT conducted a second question and answer session with each firm that submitted a Technical Proposal and an Addendum to its Technical Proposal. DOT’s Technical Review Committee (TRC) evaluated and scored all of the submitted Technical Proposals. The RFP prohibits DOT from scoring a non-responsive proposal. The RFP specifically provided as follows: Non-Responsive Proposals Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be in nonconformance with the requirements and instructions herein contained. A proposal may be found to be non- responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, failure to meet deadlines and improper and/or undated signatures. (Emphasis added). The Prince PARCLO design has not been approved by the FHWA. Both Prince and DOT concede that construction of the PARCLO design is conditional on approval by the FHWA. Although the RFP allowed for the waiver of minor irregularities in a proposal, the RPF precluded DOT from waiving irregularities that affect the price of a proposal to the disadvantage of other bidders. The RPF provided as follows: Waiver of Irregularities The Department may waive minor informalities or irregularities in proposals received when such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Any design submittals that are part of a proposal shall be deemed preliminary only. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the proposal rather than rejecting the entire proposal. In no event will any such elections by the Department be deemed to be a waiving of the Design and Construction Criteria. The Proposer who is selected for the Project will be required to fully comply with the Design and Construction Criteria for the price bid, regardless that the proposal may have been based on a variation from the Design and Construction Criteria. Proposers shall identify separately all innovative aspects as such in the Technical Proposal. An innovative aspect does not include revisions to specifications or established Department policies. Innovations should be limited to Design–Build Firm’s means and methods, roadway alignments, approach to Project, use of new products, new uses for established products, etc. The Proposer shall obtain any necessary permits or permit modifications not already provided. Those changes to the Design Concept may be considered together with innovative construction techniques, as well as other areas, as the basis for grading the Technical Proposals in the area of innovative measures. The TRC’s technical scores were publicly announced on April 9, 2015, which was also the deadline for submission of sealed Price Proposals. After the technical scores were announced, the sealed Price Proposals were opened. Prince submitted the lowest Price Proposal with a bid of $84,937,900. Middlesex submitted the second lowest Price Proposal of $94,664,000. As provided in the RFP, the contract was to be awarded to the firm with the lowest adjusted score. The adjusted scores were calculated pursuant to the formula set forth in the RFP, and the proposals were ranked. Prince had the lowest adjusted score of 1,069,746.851. Middlesex had the next lowest adjusted score of 1,083,112.128. DOT posted the Notice of Intent to award the contract to Prince on April 14, 2015. Middlesex timely complied with all requirements to protest the contract award in this proceeding. Middlesex correctly asserts that the Prince PARCLO proposal is non-responsive to various requirements of the RFP. Middlesex asserts that the Prince PARCLO proposal fails to comply with the RFP requirements regarding northbound exit lanes from I-75 onto SR 50. The evidence supports the assertion. Addendum #10 to the RFP required as follows: The north and southbound I-75 exit ramps to west and eastbound SR 50 shall consist of triple lefts and shall provide for two (2) WB62FL semi-trucks in the outside two (2) lanes, turning left parallel to each other at the same time through the entire turn at a minimum, with at least four (4) foot separation between those vehicles and at least 10 feet of separation between the outermost vehicles in the opposing left turn movements. (Emphasis added). The Prince proposal does not comply with this requirement. During a pre-submittal meeting, Prince initially proposed a variation from the “triple left” requirement for the northbound exit ramp that included dual left and dual right turn lanes with a shared left-right fifth lane. After DOT expressed concern with the shared lane proposal, Prince revised the plan to include only dual right and dual left turn lanes. Prince asserts that DOT approved its deviation from the triple left turn lane requirement, essentially by silent acquiescence during the meeting. Although Prince and DOT discussed the issue, there is no evidence that DOT affirmatively approved Prince’s deviation from the RFP triple-left requirement. At the hearing, Prince stated that it will comply with the triple-left requirement at the proposed price, if DOT and/or the FHWA insist. Middlesex asserts that the Prince proposal fails to comply with RFP requirements regarding placement of “stop bars” on exit lanes from I-75 onto SR 50. The evidence supports the assertion. Addendum #10 to the RFP required as follows: It is acceptable to utilize parallel cross walks across the ramps terminals along SR 50, although adjustments should be made to accommodate drainage structures. However, for all interchange types, the lead vehicles (at a minimum) at the stop bar, shall be in front of the bridge retaining wall and have no sight obstructions at SR 50. (Emphasis added). The Prince proposal does not comply with this requirement. The requirement that the stop bar be placed in front of a bridge retaining wall is for purposes of safety. The Prince proposal results in a stop bar being located behind the bridge retaining wall, creating a sight obstruction at SR 50. Such a sight obstruction poses a safety hazard to drivers, especially to drivers who fail to comply with traffic signals. The failure to comply with this requirement also creates a potential safety problem for pedestrians, because a driver must proceed into the pedestrian crosswalk in order to clear the sight obstruction. Prince suggested that the stop bar placement in its proposal is preliminary and subject to change. However, compliance with this requirement would require lengthening the I-75 bridges to provide additional space between bridge retaining walls. Increasing the length of the bridges increases the expense of constructing the project. Allowing a firm to deviate from this requirement provides a substantial financial advantage over other firms that complied with the requirement. At the hearing, Prince stated that it would comply with the stop bar placement requirement at the proposed price, if required to do so. Middlesex asserts that the Prince proposal fails to comply with the RFP requirements regarding “thru-lanes” on SR 50. The evidence supports the assertion. In regards to SR 50 thru-lanes, Addendum 7 of the RFP provided as follows: The concrete pavement shall be placed full width incorporating the four 12-foot thru lanes, twelve (12) foot turn lanes, seven (7) foot Buffered Bicycle Lanes and offsets to any islands from the furthest point of the begin and end of the curb returns of the ramps east and west of SR 50. (Emphasis added). Although only three thru-lanes on each side are intended to be used for traffic when this project is completed, the RFP clearly required installation of concrete pavement for the full width of four thru-lanes traveling on SR 50 in both east and west directions through the interchange. The unused lanes are intended to accommodate future expansion of SR 50. The Prince proposal fails to include four concrete thru-lanes in each direction on SR 50. The Prince proposal includes only three westbound thru-lanes on SR 50. The Middlesex proposal includes concrete pavement of all lanes required by the RFP. Prince asserts that DOT’s acceptance of the Prince ATC concept included approval of its deviation from the thru-lane requirement. There is no evidence that DOT affirmatively approved the deviation. The RFP requires that DOT issue an addendum to notify firms of ATC-proposed deviations from the RFP that result in modification or abandonment of RFP requirements. DOT did not issue an addendum that modified or abandoned the referenced thru- lane requirement. The number of thru-lanes impacts the cost of the project through both materials and construction expenses. Allowing a firm to deviate from the thru-lane requirement provides a substantial financial advantage over firms that comply with the requirement. Middlesex asserts that the Prince ATC proposal fails to comply with the traffic analysis requirements set forth in the RFP. According to the RFP, any proposed modification from the SPUI Concept Plan must be supported by a traffic analysis demonstrating a “Level-of-Service and reduction in delay throughout the year that is better than or equal to the Concept Plan configuration.” The RFP further required that the traffic analysis demonstrate that the concept is equal to or better than the SPUI Concept Plan for “all movements” as measured by the criteria set forth therein. During the ATC review period, the DOT employees responsible for determining whether the Prince ATC proposal complied with the traffic analysis requirement on a “movement-by- movement” basis failed to do so prior to allowing Prince to proceed with the ATC. At the hearing, Prince and Middlesex presented “movement-by-movement” traffic evaluations of both proposals. The evidence failed to establish that either the SPUI or the PARCLO proposal was superior in terms of concept design or specific application to this project, or that either proposal should have been rejected on the basis of a traffic analysis. Middlesex asserts that the Prince proposal should have been rejected because of certain safety concerns observed by members of the TRC during the scoring process. The evidence was insufficient to establish that the remedy for such concerns was rejection of the Prince proposal, or that the TRC scores should be revised. Both Middlesex and Prince assert opposing violations of proposal page number limitations. There is no evidence that the content of excess pages provided either party with any significant advantage over another; therefore, the deviation is deemed to be a minor irregularity. Prince asserts that for various reasons, the Middlesex proposal was not responsive to the RFP. Although Prince asserts that Middlesex failed to obtain approval of an ATC related to traffic signalization, Middlesex was not required by the RFP to seek ATC approval from DOT for traffic signalization in a SPUI concept proposal. Prince asserts that the Middlesex proposal failed to meet stormwater management system requirements included in Addendum #10. Specifically, Prince asserts that the Middlesex proposal failed to reflect a closed storm sewer system for stormwater conveyance, and failed to reflect the installation of any stormwater system in one specific location on its plan. The RFP does not specifically require that a submitted proposal include a complete stormwater system plan for the entire project area. Final design of the actual stormwater system, including sewer design and pipe sizes, is dependent on as-yet- undetermined variables, including the speed limits of adjacent roadways. Highway speeds impact stormwater system design because curb and gutter installation is excluded where speed limits exceed 45 miles per hour. The evidence is insufficient to establish that the Middlesex proposal does not meet the stormwater requirements of the RFP. Prince asserts that the Middlesex proposal failed to comply, in particular locations, with RFP requirements related to border width and mowing strips. The RFP set minimum requirements for border width, which is essentially an open area along the shoulder of the road. The Middlesex proposal failed to comply with the border width requirements. The Prince proposal included a similar deficiency. The RFP also required a minimum 10-foot mowing strip between the right-of-way and the edge of the shoulder of the road or retaining wall. The Middlesex proposal failed to comply with the mowing strip requirement. Both the Prince proposal and the RFP’s SPUI concept plan exhibits the same deficiency. The evidence failed to establish that the border width or mowing strip deficiencies warranted rejection of either proposal as non-responsive. Prince has asserted that the Middlesex Traffic Control Plan includes a diagram that displays a “cross slope break” condition in the vehicle wheel path that would exist during a temporary traffic control situation. Such a condition could present a safety hazard to drivers. The sole diagram upon which the assertion relies lacks scale and is insufficient to establish that the Middlesex proposal will result in such a condition at any time during the actual construction process. Prince has suggested that the Middlesex design fails to comply with the RFP requirements related to accommodation of a future flyover. The RFP required that the proposed interchange “accommodate to the maximum extent possible the future design and construction by others of a new directional flyover ramp” connecting northbound I-75/SR 50 to westbound US 98/SR 50/Cortez Boulevard “so as to maximize the salvaging of the then-existing facilities, in order to reduce future probable costs.” The Middlesex proposal was principally based on the future flyover included in the RFP’s SPUI Concept Plan, and, accordingly, the Middlesex proposal complies with the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order awarding the contract issued pursuant to RFP E7K24 to the Middlesex Corporation. DONE AND ENTERED this 7th day of December, 2015, 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 7th day of December, 2015.
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.
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 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 Fact and Conclusions Of Law, it is RECOMMENDED that: Respondent Department of Transportation enter a final order denying the application of petitioner V. J. Allen, d/b/a The Seafood Shack, for a sign permit. RECOMMENDED this 25th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985.
Findings Of Fact Respondent, Alonzo P. Baggett, owns a residential parcel of property at the corner of State Road 35 (Bartow Highway) and Hollingsworth Road in Lakeland. Respondent's property has his residence on it which was purchased in 1961. When purchased, the property was originally a duplex with a driveway serving each unit. Respondent enclosed the carport on the easterly side of the house for use in an upholstery business. When he did so, the driveway at the easterly end of the house remained in place. The house is presently used as a single family residence and the entrance to what was originally the right hand, or eastern unit, is permanently enclosed with concrete block construction. Respondent resides in the western side of the duplex and parks in the driveway which serves that side. The driveway on the right hand side of his property is approximately the length of one vehicle. The intersection of State Road 35 and Hollingsworth Road is a busy signalized intersection. On an average day, upwards of 8500 vehicles pass through the intersection. State Road 35 is a four lane facility in the vicinity of Respondent's home. Both State Road 35 and Hollingsworth Road have dedicated right and left turn lanes at the intersection. The easterly connection which Petitioner is seeking to close is within the radius of the turn at the southwest corner of State Road 35 and Hollingsworth Road and the access is located in front of a stop bar on State Road 35. To use the subject driveway, a driver must back into the flow of traffic at the intersection to exit the driveway. The connection also allows a driver to make a series of conflicting movements in relation to the traffic in the intersection. As it presently exists, there are no signal heads facing the driveway and a driver cannot see the traffic signals at the intersection. Both conditions create a safety problem because a driver, without seeing the signal head, cannot tell who has the right-of-way. Respondent's State Road 35 connection provides uncontrolled access into a controlled intersection and could present an unexpected traffic movement to drivers entering the intersection from either State Road 35 or Hollingsworth Road. Additionally, the backing motion could conflict directly with the pedestrian crosswalk at that corner. Also, there are two public schools, Lime Street Elementary and Lakeland High School, served by the intersection of State Road 35 and Hollingsworth Road. The driveway in question creates a conflict with school children who cross the road at the intersection. Petitioner has engaged in an extensive review project of resurfacing, signalization, and road upgrades to new standards and has received a number of requests to change sidewalk and curb ramps to comply with ADA standards. The upgrades also included relocating some signal loops and Respondent's driveway came within the loop and upgrading review process. Petitioner has no authority to change the zoning of Respondent's property such that he can resell it to a commercial purchaser as Respondent has requested. Closing the subject driveway is necessary to alleviate the safety problems referenced herein. Although the effect of this intended closure will prevent Respondent's access to his driveway on State Road 35, based on the limited usefulness and the access that he has to his property (the Hollingsworth Road connection), the closure is not arbitrary or unreasonable as Respondent contends. In this regard, Respondent still has access from Hollingsworth Road. That access is safer to use and the signalization from that road can be seen and the traffic flow isn't as heavy as State Road 35.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner, the Department of Transportation, enter a final order closing Respondent's connection to State Road 35 and that such closure be completed by Petitioner at its own cost. DONE AND ENTERED this 19th day of July, 1994, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Alonzo T. Baggett 605 Hollingsworth Road Lakeland, Florida 33801 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Haydon Burns Building Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
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 =================================================================
The Issue Was the Department of Transportation's action in closing an existing driveway connection to US Highway 27 from the property located at 2623 US Highway 27, South in Sebring, Florida, in compliance with Chapter 14-96, Florida Administrative Code, and the Access Management Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The driveway connection to US Highway 27 which the Department has closed, and is the subject matter of this proceeding, served the property located at 1623 US Highway 27 South, Sebring, Florida (Merrill Lynch property) which is situated at the intersection of Highway 27 and Sparta Road in Sebring, Florida, and abuts both US 27 and Sparta Road. MacBeth Associates, LTD., a Florida limited partnership, is presently the owner of the Merrill Lynch property. However, MacBeth Associates, LTD. (MacBeth) did not acquire the Merrill Lynch property until after the commencement of this proceeding. Ross MacBeth, sole owner of a corporation that is one of the general partners of MacBeth, appeared on behalf of MacBeth. However, Ross MacBeth did not file a motion or request that MacBeth be made a party to this proceeding. John Clark, Petitioner, is employed by Merrill Lynch who was leasing the Merrill Lynch property at the time the Department made the decision to close the driveway connection which is the subject matter of this proceeding. On December 17, 1997, the Department issued a Notice of Intent to Change Driveway Connection to Petitioner advising that due to the road improvement project on State Road 25 (US 27), Petitioner's existing driveway connection onto US 27 would be closed because it would cause a safety or operation problem on the State Highway System. This driveway connection is identified as No. 73 on the Department's Access Management Plan. Between Lakeview Avenue and Highland Avenue which includes the Sparta Road and US 27 intersection and Petitioner's driveway connection, US 27 is classified as level five under the Department's Access Management Classifications for Highlands County which was signed into effect by the Department's District I Secretary in January 1993. The Department utilizes the Florida Department of Transportation Roadway and Traffic Design Standards (Design Standards) as guideline specifications for designing and building driveway connections onto state roads. Aim Engineering and Surveying, Inc. prepared a Connection Access Management Study (Study) for the Department for the project which is the subject matter of this proceeding. Ronald L. Schlegel, Professional Engineer, registered in the State of Florida, who is qualified in transportation engineering was the engineer of record for the Study. The Study recommends the removal of Petitioner's driveway connection because of potential vehicle movement conflicts with bank's driveway connection and that site access is provided from Sparta Road which connects with US 27. The Merrill Lynch property has two access points off Sparta Road, one adjacent to the Merrill Lynch building and one connecting to the rear parking area of Merrill Lynch. Access Management Standards (Standards) require a clearance of 230 feet between the curb line of the intersection and curb line of the access immediately downstream of the intersection. Additionally, the Standards require a minimum of 240 feet between access points (driveway connections). The Merrill Lynch driveway connection (driveway connection 73) does not conform to the Standards in that it is approximately only 90 feet from its curb line to the curb line of the intersection of US 27 and Sparta Road. Additionally, it appears that the curb line of driveway connection 73 and the curb line of the bank's driveway connection (driveway connection 72) is considerably less than 230 feet and therefore, does not conform to the 230 foot requirement of the Standards. The Standards require a 35 foot turning radius for driveway connections on US 27. Conditions on US 27 at driveway connections 72 and 73 would not allow a 35-foot turning radius. Therefore, since the bank had no other access to US 27, the closing of driveway connection 73 was necessary to prevent any safety and operational problems existing at driveway connections 72 and 73. One of the criteria used in the Study to evaluate existing driveway connections was: C. Use of joint driveways, if adjacent property owners agree with such use, where such use will solve a safety or operation problem. A joint use agreement shall be executed by property owners. The Department must design driveway connections to connect to a paved point where the Department's right-of-way joins private property. The Merrill Lynch property that is adjacent to the bank property is not paved. Therefore, driveway connection 72 could not be constructed by the Department such that it straddled the bank property and the Merrill Lynch property which would have allowed joint use of driveway connection 72. In response to a contact by Representative Spratt, the Department did a field review of driveway connection 73 and confirmed that joint-use access was the best alternative for Petitioner. Although joint use of driveway connection 72 is possible, Petitioner has not pursued this matter with the bank. Also, in response to a contact by Representative Spratt, the Department conducted a traffic count at the intersection of US 27 and Sparta Road. From the results of this traffic-count study, it was concluded, barring joint use of driveway connection 72, that access to the Merrill Lynch property off of Sparta Road created less safety and operational problems than would driveway connection 73 if it were allowed to remain open, notwithstanding any evidence to the contrary presented by Petitioner which I did not find to be totally credible. While some of the traveling public (including Petitioner and his customers) may be inconvenienced as a result of the closure of driveway connection 73, it is prudent, from a traffic engineering and safety perspective, to close driveway connection 73.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order denying Petitioner's request to re-open driveway connection 73. DONE AND ENTERED this 18th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Clerk of Agency Proceedings Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Ross MacBeth, Qualified Representative MacBeth Associates, LTD. 2543 U.S. Highway 27, South Sebring, Florida 33870 John Clark c/o Merrill Lynch 2623 U.S. Highway 27, South Sebring, Florida 33870 Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by James H. Peterson, III, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 24, 2013 12:32 PM Division of Administrative Hearings DONE AND ORDERED this at day of May, 2013, in Tallahassee, Leon County, Pudon.. Baker, Chief Biireau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this ay day of May, 2013. Nalini Vinayak, Dealer Kicense Adisiet-= NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Richard M. Nye Nyes Auto Sales Post Office Box 217 Callahan, Florida 32011 Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 Tallahassee, Florida 32399 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
