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
Findings Of Fact Respondent, Arrowhead Campsites, owns a sign located one mile east of State Road 71 on Interstate Highway 10 in Jackson County, Florida. The sign is located 139 feet from the edge of the highway, and is clearly visible from the main traveled portion of that highway. At the time of the petition in this case, no permit tag was located on the sign, and, additionally, no permit tag was on the sign when last inspected on October 2, 1978, four days prior to hearing in this cause. Respondent, Arrowhead Campsites, owns a sign located .6 miles west of State Road 69 on Interstate Highway 10 in Jackson County, Florida. This sign is clearly visible from the main traveled portion of the roadway, and is located 188 feet from the edge of the roadway. In addition, the sign is located 240 feet from an interchange on Interstate Highway 10. At the time the petition in this cause was filed on March 28, 1978, no permit tag was located on the sign, and, further, no permit tag was located on the sign on October 2, 1978, four days prior to the hearing in this cause. Both the sign located one mile east of State Road 71 on Interstate Highway 10 and the sign located .6 miles west of State Road 69 on Interstate Highway 10 bear copy advertising Arrowhead Campsites. Both of the signs in question are located outside any incorporated city or town. Any proposed findings of fact submitted by Respondent and not incorporated in this recommended order are specifically rejected.
Findings Of Fact Background State Road 80 is part of the State Highway System. The road runs in an east-west direction from Interstate I-75 at Fort Myers in Lee County to U.S. Highway 27 in Hendry County. The road improvement project currently under construction on State Road 80 involves the expansion of the road from two lanes to six lanes. A raised median separates the eastbound lanes from the westbound lanes. To provide access from either direction to homes and businesses that are adjacent to the road, turn lanes and median openings have been designed into the project. This is not a "limited access facility" as defined by Section 334.03(11), Florida Statutes. Rather, it is a "controlled access facility" as defined by Section 334.03(6), Florida Statutes. Service roads restore access to properties that were accessed from both directions prior to the improvements. Pursuant to routine agency practices, the median openings were set at the "60% phase" of the project design in June or July of 1986. Petitioner Stevens & Layton, Inc. is a Florida corporation in which Petitioners Robert Wilenius and Harvey W. Stevens are officers and directors. In September 1987, Petitioner Stevens and Layton had drawings of a site plan completed for the development of a commercial building complex. The plans for the buildings involved real property located behind an existing business that fronts State Road 80. The existing business had a driveway that accessed State Road 80. The owner of the entire parcel of land (which included the existing business and the site of the proposed building complex) agreed that the existing driveway could be used as an access drive to the complex. The site plans were reviewed by the Lee County Department of Community Development Review. On October 15, 1987, Lee County rejected the proposed site plan. Right and left turn lanes onto the property had to be provided by the developer, Stevens & Layton, Inc., before the project would be considered. On November 10, 1987, a meeting was held that included the project engineer, John Bosserman, Robert Wilenius of Stevens & Layton, Inc., Patrick Hunt of Lee County Department of Community Development Review, and D. M. Heflin of the Florida Department of Transportation. During the meeting, Mr. Heflin confirmed that the proposed expansion of State Road 80 was of high priority in the area and should be let for bid in June 1988. Based upon this representation, the county decided to waive the requirement that the developer provide turn lanes into the property during Phase I of the project. This construction phase involved the completion of an office building and a mini-storage warehouse. During his revisions of the site plan after October 15, 1987, the professional engineer hired for the commercial building project obtained a copy of the Department's plans for the improvement of State Road 80. Evidence submitted at hearing shows that these plans were reviewed by the engineer on or before November 17, 1987. The plans reviewed show where the raised medians and the median openings were to be located in the future on the state road. It is clear on these road improvement plans that the parcel of land on which the commercial building complex was to be located, was not going to receive direct access to the expanded state road from both directions. A median opening was not planned by the Department in the immediate area of the driveway into the complex. In addition, the closest median opening east of the driveway was not designed to accommodate long industrial vehicles that might approach the commercial building complex from the eastbound lanes. This median opening allows access to the Wilson property which is adjacent to the property in question. In addition, a service road from the former Wilson driveway which is now public right-of-way, restores access to the dominant estate in front of Petitioner's property from the eastbound lanes. The Petitioners knew or should have known prior to their purchase of the real property involved in the commercial building complex that a median opening was not being provided by the Department for direct access into their property, which is behind the dominant estate which fronts the state road, both eastbound and westbound lanes of the improved State Road 80. The Petitioners Robert Wilenius and Sarah Wilenius, with Harvey W. Stevens and Mary Lou Stevens, purchased the real property on which the commercial building complex developed by Petitioner Stevens and Layton, Inc. was to be located on January 8, 1988. This area of land was severed from the dominant estate that continues to include the business and the driveway that abuts State Road 80. In order for the Petitioners to have access to the property from the state road, the owner of the dominant estate granted the new owners of the back portion of the parcel a non-exclusive easement for roadway purposes, through the driveway and across the front of the parcel. The property, including easement, was purchased for less than $100,000.00 according to the documentary tax stamps on the deed. After various revisions were made to the site plan, the development plans were approved for a Final Development Order from Lee County on January 12, 1988, with the following stipulation: Frontage road agreement including sidewalk, to be submitted with phase one prior to C.O. Right turn lanes to be constructed with phase two prior to C.O. Based upon the site plan in evidence, it was anticipated in January 1988 that the future frontage road easement across the dominant parcel would connect with the paved access drive onto the Petitioners' property. Apparently, this frontage road easement would allow traffic from the eastbound lanes of State Road 80 to enter Petitioners' access drive from one of the median openings east of Petitioners' property. In August of 1988, Phase One the commercial building complex was under construction. During this time period, Walter D. Stephens, P.E., the Acting Director of the Lee County Department of Transportation and Engineering, Division of Transportation Planning and Permitting, examined the proposed median crossover locations on State Road 80. Mr. Stephens opined on August 10, 1988, that if the Petitioners' commercial building complex were to have heavy construction vehicle (low-boy trailer truck) activity, these large vehicles would not be able to safely move from the first median opening east of the property onto the proposed frontage road under the following conditions: If a low-boy trailer truck made a left turn movement from the Wilson drive onto the frontage road to move west towards Petitioners' access drive, the back of the truck would still be on State Road 80 if there were other vehicles in the Wilson drive waiting in front of the truck to make the same turn. Patrick Hunt, the Development Review Supervisor for Lee County Department of Community Development, was promptly advised of Mr. Stephens' opinion. A revised print of the site plan for the commercial building complex received the professional seal of the engineer on the project on November 14, 1988. Lee County Department of Development Review approved the revised site plan on November 15, 1988. It is unknown to the Hearing Officer exactly when the certificate of occupancy for Phase One of the development was issued. However, based upon the verified complaint filed by Petitioners in circuit court, the certificate was issued before the complaint was filed because Stevens & Layton was operating its contracting business from this location. If Stevens & Layton proposed to go forward with Phase Two of their development on the property, they were obligated to construct right turn lanes prior to receiving a certificate of occupancy for the second stage of development. The circuit court judge denied the temporary preliminary injunction, but encouraged the Department and the Petitioner to negotiate for a median relocation. The judge will hear the merits of the pending suit after the Petitioners have exhausted administrative remedies for a median opening providing direct access from eastbound and westbound lanes on State Road 80 to their property. The Problem The Petitioners are seeking to have the Department provide them with a median opening in front of the road access easement to their property in order to allow the 70' low-boy tractor trailer used in Stevens & Layton Inc.'s pipeline business to enter from the eastbound lane of State Road 80 without having to make a U-turn from the median opening east of the property. The Petitioners maintain that a serious safety hazard could result to the tractor trailer or other traffic, if the current road design is allowed to remain in the area due to the tractor trailer's use of the median opening just east of Petitioner's drive. Alternative Requests for Median Opening One request for a median opening submitted to the Department by Petitioners requested a median opening that gives them a turn lane into their property from both the eastbound and westbound lanes of traffic from State Road 80. The second alternative suggested by Petitioners is to place the median opening planned for the entry onto the Wilson property between the two existing driveways, still allowing those drives to remain in place. The proposed additional center driveway could carry two-way traffic and would have a sufficient turning radius for large trucks planning to turn left onto Petitioners' access easement from the dominant estate. First Alternative The first alternative suggested by the Petitioners would be approximately 240' west of the planned median opening that allows traffic to enter the drive in front of the Wilson property. In other locales with similar development and a similar roadway design, the Department does not allow median openings within 660' of other median openings. Speed is one of the prime considerations. Longer acceleration and deceleration lanes are needed on roads with higher speeds such as this one, to allow drivers reaction time to use the openings. A short lane, such as the one proposed, would create a safety hazard and would not solve the problem the Petitioners are seeking to solve: the difficulty a driver would have with the turn of the long low-boy trailer from the eastbound lane into their access easement back to their property. There is a conforming road connection which allows Petitioners a reasonable means of connection to the public roads system. Second Alternative The second alternative failed to detail information for all properties using the proposed median opening. In addition, there was no concurrence by all affected property owners on the joint driveway usage. The plan greatly enhances the value of Petitioners' property, which does not even front the existing road. The plan also significantly decreases the value of the adjoining Wilson property, the dominant estate to Petitioners' property, and the right-of-way previously purchased by the Department. The right-of-way was purchased to provide the dominant estate a reasonable means of connection to the public roads system from the driveway also used by Petitioner. Additional Findings Why the Requested for Median Openings Should Not Be Granted The Petitioners' purchase and use of this back portion of the parcel was not contemplated by the road designers at the time the road improvement design with median placements went into effect. Right-of-way was purchased by the Department to create a frontage road to provide reasonable access from the drive now used by Petitioners to the dominant estate that used the drive to connect to the public road system. The problem the Petitioners are seeking to cure with the proposed median opening is curable without obligating the State to create an additional median opening or improving the access to Petitioners' property while decreasing access to other property owners whose property abuts State Road 80. For example, the Petitioners could advance the construction of the westbound right turn lane relating to their Phase Two construction. This would provide additional pavement width to aid in the negotiation of a turn. It would also be at Petitioners' expense, as previously stipulated to with Lee County in its approval of the Development Order for the property. A driver could also select a more appropriate turning area further east of the property on State Road 80 to reverse the direction of the low boy. A circumferential route of I-75, SR 78, SR 31 and then west of SR 80, could be used by the low-boy driver to eliminate the left turn across opposing traffic. The low boy driver could use the present median opening as designed. The tractor trailer could cross at the present opening, enter the right-of-way in front of the Wilson drive, and turn left on the one way frontage road which accesses the easement to Petitioners' property. Drivers should be cautioned to use an alternative route if other vehicles are stored in the right-of-way in front of the Wilson drive, waiting to turn left. This could prevent the safety problem previously raised by Walter D. Stephens, P.E. If the Department permitted either of the proposed alternative median openings, federal funding on the entire project could be in jeopardy. This could require the state to pay $34.6 million for the improvement out of its own funds.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to relocate the median opening or for a joint use median opening be denied. DONE and ENTERED this 7th day of August, 1990, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-4196 Petitioners' proposed findings of fact are addressed as follows: Rejected. See HO #4. Accepted. Accepted. See HO #10-#11. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. See HO #4, #7-#9, and HO #12. Rejected. Contrary to fact. The Petitioners were either acting under self- imposed blindness (see Conclusions of Law) or were trying to increase the value of their back parcel at public expense. Rejected. The letter was not even from Petitioners. In addition, the county could have made an application to change the roadway traffic patterns under Section 335.20, Florida Statutes. Alternative routes for low boy trailers could have then been explained to the county by the Department. Accepted except for the improper conclusion that an "impasse" has been reached. This is a mischaracterization of fact. See HO #17. Accepted. See HO #18. Accepted. See preliminary matters. Rejected. Contrary to fact. The Petitioners could resolve any safety issues. See HO #28-#33. Rejected. Contrary to fact. See HO #28-#33. Rejected. Improper Conclusion of Law. See Section 335.187, Florida Statutes. The Petitioners are on notice that a permit must be obtained due to the significant change in the use, design or traffic flow of the connection and the state highway. Rejected. Irrelevant. Rejected. Irrelevant. There was no showing that Mr. Hunt could render an expert opinion that should be given greater weight than that of the professional engineer presented by the Department. Rejected. Contrary to fact. See HO #34. Respondent's proposed findings of fact are addressed as follows: Rejected. These definitions are defined by law and rule as they relate to this case. Accepted. See HO #17-#18. Accepted. See preliminary matters. Rejected. Irrelevant. Petitioners could have borne expense. 5. Rejected. Irrelevant. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted. Accepted. See HO #3. Accepted. See HO #3. Accepted. Accepted. Accepted. Rejected. See pleadings as to Petitioners in this case. Rejected. See HO #4 and HO #10. There was no showing of the parties interests in all businesses. It is not a significant material fact in these proceedings. Accepted. Rejected. Irrelevant. Accepted. See HO #10-#11. Accepted. Accepted. See HO #6. Rejected. Irrelevant. See HO #7-#9. Rejected. Irrelevant. Stevens & Layton, Inc. had its own consulting engineer. See HO #7. Rejected. Irrelevant. See HO #7. Accepted. See HO #7. Accepted. See HO #30-#33. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. See HO #26. Rejected. This was not sufficiently proved at hearing. There was no evidence the Committee reviewed the proposals. Rejected. There was no evidence the Federal Highway Administration has been approached regarding the change in the median opening. Accepted. Accepted. Accepted. See HO #24. Accepted. Rejected. See #37 above. Rejected. See #38 above. Accepted. Accepted. Accepted. See HO #26. Rejected. See #37 above Rejected. See #38 above. Accepted. Rejected. Contrary to law. See Section 335.187(1), Florida Statutes. Rejected. Contrary to evidence presented and law previously cited in #51 above. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. COPIES FURNISHED: Edward M. Chew, Esquire Department of Transportation P.O. Box 1249 Bartow, FL 33830 J. Jeffrey Rice, Esquire Goldberg, Goldstein & Buckley, P.A. P.O. Box 2366 Fort Myers, FL 32902-2366 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 =================================================================
The Issue Whether the application for an at grade vehicle railroad crossing permit should be issued to the City of Holly Hill by the Department of Transportation.
Findings Of Fact The City of Holly Hill, Florida, filed an application with DOT for an at grade railroad crossing permit on Tenth Street at Milepost 107+1513', in the city of Holly Hill. The DOT denied the City's application by letter dated November 27, 1991, which enclosed the Department's intent to deny the permit. The City petitioned and received a hearing to consider its application. The City of Holly Hill is located due north of the City of Daytona Beach on the east coast of the state of Florida. It stretches west approximately a mile from the Halifax River, and runs north for approximately two miles from the northern boundaries of the City of Daytona Beach. Tenth Street, where the proposed railroad crossing would be located, is a local street running east and west in the City of Holly Hill, Florida. West of the Florida East Coast Railroad tracks, Tenth Street connects with Center Avenue and continues further west to connect with Nova Road, both of which are major north/south connectors. To the east of the Florida East Coast Railroad tracks, Tenth Street runs less than one block and terminates at its intersection with US 1, the major north/south arterial road in Holly Hill. Immediately east of the Florida East Coast Railroad tracks in the vicinity of Tenth Street, the City of Holly Hill maintains Holly Land Park, a major recreational area in downtown Holly Hill. Immediately to the west of the Florida East Coast Railroad tracks, the City of Holly Hill maintains a nature trail and facilities related to its public works department. The City seeks the permit for an at grade crossing alleging that (1) a large number of pedestrians are illegally crossing the track and have persisted in doing so notwithstanding warnings and citations; and (2) the City feels that opening a crossing at Tenth Street would relieve bad traffic congestion existing on Eleventh Street just north of Tenth at Eleventh's intersection with US 1. Video tapes and the observations of police officers of the City of Holly Hill establish a significant level of pedestrian traffic by adults and children over the railroad tracks between the western and eastern ends of Tenth Street. This practice is very dangerous. Some of the pedestrians walk their bicycles over the railroad tracks at this location. The majority of the young people crossing the tracks in this vicinity are moving east to utilize the facilities in Holly Land Park or moving west to go to the middle school and grammar school located respectively at the intersections of Center Avenue and Walker Street and Center Avenue and Fifteenth Street. This is a popular route because of the heavy vehicle traffic on Eleventh Street and Eighth Street. Warnings, citations, and patrols have not halted the illegal crossing of the tracks. Eleventh Street is located 1300 feet to the north of Tenth Street and also runs east and west from the Halifax River westward to beyond Interstate 95. Plans call for the development of an interchange at the intersection of Interstate 95 and Eleventh Street. Eleventh Street appears to be the only street in downtown Holly Hill which moves directly west in this manner. From Nova Road east to US 1, Eleventh Street runs parallel to and north of a large drainage canal. Two shopping centers are located at the intersection of Eleventh Street and Nova Road. Eleventh Street is so close to this drainage feature that pedestrian walks on the southern side of Eleventh Street were removed. Because of this drainage structure, Eleventh Street cannot be inexpensively widened. To the south of Tenth Street 1320 feet, Eighth Street runs east and west from the Halifax River to Nova Road. Both Eleventh and Eighth Streets are two-way streets along their entire length. The City bases it petition to open the crossing upon traffic congestion caused by east bound traffic on Eleventh Street seeking to turn left on US 1, and by north bound traffic on US 1 seeking to turn left onto Eleventh Street when Eleventh Street is blocked by rail traffic. The I-95/Eleventh Street interchange will increase traffic congestion on Eleventh Street. The City asserts that opening the proposed crossing would alleviate this congestion because traffic using Eleventh Street would then use Tenth Street. The traffic count on Eleventh, Tenth, and Eighth Streets was measured by the county. The traffic on Eleventh Street was 10,744; on Tenth Street was 1,019; and on Sixth Street was 6,153. According to a traffic projection run by the county traffic operations supervisor, 1,000 vehicles would be diverted from Eleventh Street to Tenth Street if a vehicle at grade crossing were opened at Tenth Street. Although this projection is suspect because it was made without any origin and destination surveys being done, the shift of 1,000 vehicles from Eleventh Street to Tenth Street is negligible in terms of its present and projected impact on Eleventh Street. It was uncontraverted that a ground level pedestrian crossing with adequate gates and signals would permit pedestrians to cross the railroad tracks quickly and therefore reduce their exposure to train/bicycle accidents. (T- 81,135.) Opening an at grade crossing on Tenth Street would create a greater potential for car/train accidents by increasing the exposure of vehicle traffic to railroad traffic. This was also uncontraverted. The fire station is currently located in the back of City Hall which is located immediately across US 1 from Holly Land Park. Plans exist to move the fire station from its present current location to a location in the vicinity of the Public Works Department along Tenth Avenue. The public library which is currently located at Holly Land Park affronting on US 1 may be relocated to the old school building located south of the city hall. Movement from the fire- station at its proposed location would be no better or worse than it is now because Tenth Street does not extend east across US 1. Emergency equipment will have to use Eighth Street or Eleventh Street to go east, and these streets are also the best routes west. The proposed crossing is not necessary based upon the traffic studies prepared by the City. Assuming the shift of 1,000 cars from Eleventh Street to Tenth Street, this would not warrant the expense and the potential hazard generated by permitting the proposed railroad crossing. It was uncontraverted that the best way to solve the congestion problem on Eleventh Street would be to widen it. However, it was universally acknowledged that this would be very expensive. While evidence is contradictory, the most credible testimony supports using one-way pairs on Eleventh and Eighth Streets as a low cost interim measure to improve traffic flow along the arterial routes. (T-112,145 et seq., and 173.) In addition to the crossings located at Eleventh and Eighth Streets, there are also crossing located at next to through streets south of Eighth, and at Fromich Street north of Eleventh. There would be more than five public crossings located within one mile of railroad track if a crossing were opened at Tenth Street.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered approving a pedestrian at grade crossing at Tenth Street in the City of Holly Hill, Volusia County, Florida; and That the Petition for a public at grade vehicular railroad crossing at Tenth Street in the City of Holly Hill, Volusia County, Florida be DENIED. DONE and ENTERED this 5th day of August, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1992. APPENDIX CASE NO. 92-0942 PETITIONER'S PROPOSED FINDINGS Petitioner's Recommended Order Paragraphs 1, 2, 8 Recommended order paragraph no. 4 Paragraph 3, 5, 7, 10 Recommended order paragraph no. 7 Paragraph 4 Recommended order paragraph no. 8 Paragraph 6 Rejected, Data in Paragraph is more credible Paragraph 9 Paragraph 6 Paragraph 11 Immaterial Paragraph 12 Cumulative Paragraphs 13, 14 Immaterial Paragraph 15 Contrary to the fact that Tenth Street ends at US 1 Paragraphs 16, 17, 18 Contrary to more credible evidence Paragraph 19 .027 represents one train/car collision every four years. If you are in the car, that is significant. Paragraphs 21, 22, 23, 24, 25 All these improvements do not establish the necessity for the proposed crossing and appear to be counter to good land use and traffic planning. Paragraph 26 No credible evidence to support this. Paragraph 27 Paragraph 6 Paragraph 28 Paragraph 7 Paragraph 29 Immaterial Paragraph 30 "de facto" crossings don't exist Paragraph 31 Immaterial Paragraph 32, 33, 34, 35 Paragraph 6 Paragraph 36 Paragraph 4 Paragraph 37 Speculative Paragraph 38 Paragraph 7 Paragraph 39 Paragraph 9 Respondent's Recommended Order Paragraph 1 Paragraph 1, 2 Paragraph 2 Paragraph 4 Paragraph 3 Paragraph 6, 10, 11 Paragraph 4 Paragraph 12 Paragraph 5 Paragraph 7 Paragraph 6 Paragraph 13, 14 COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Edward F. Simpson, Jr., Esquire Randal A. Hayes, Esquire Moore, Wood, Simpson, Correy, McKinnon and Vulkeja Post Office Box 305 Ormond Beach, FL 32175 Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issues in this case are whether a sign owned by the Respondent is in violation of Section 479.07(1) and 479.11(1), Florida Statutes, and, if so, what remedial action should be taken by the Department of Transportation.
Findings Of Fact Heinl's Nursery, a division of American Nursery Products, Inc., is the owner of a sign located in Dade County, Florida, on the west side of Krome Avenue (State Road 997) about 36 feet north of its intersection with S.W. 126th Street. The subject sign is located approximately 23 feet from the right-of- way of Krome Avenue. The subject sign has been at that location for a number of years. The face of the sign is made of wood and measures approximately 4 feet by 8 feet. The sign is mounted on metal poles. The message on the sign consists of the owner's name, a logo or graphic decoration, and an arrow pointing towards the right. The Department of Transportation has not issued a permit for the sign. The area in which the sign is located is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The sign is not located on the business premises of the sign owner. Krome Avenue (State Road 997) is part of the federal-aid primary highway system. By notice dated March 21, 1989, the owner of the sign was advised that the sign was in violation of the applicable statutes and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing for the immediate removal of the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989. MICHAEL M. PARRISH 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 31st day of July 1989. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mr. Mike S. Waters 15000 S.W. 192nd Avenue Miami, Florida 33187 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On March 2, 1984, the Petitioner, Pensacola Outdoor Advertising, applied for a permit to locate an outdoor advertising sign on the west side of U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida. This location is outside the city limits of Pensacola. I-10 and U.S. 29 intersect in the area where the Petitioner proposes to locate its sign. This site is 26.5 feet from the limited access fence or right of way boundary in the northwest quadrant of the interchange area where I-10 and U.S. 29 intersect. The south side of the structure for which the permit is sought is directly adjacent to this limited access fence, which is next to an off-ramp from I-10 to U.S. 29. The proposed sign site is visible to traffic on the main-traveled way of I-10 and to traffic on the interchange ramps.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Pensacola Outdoor Advertising for a permit to locate an outdoor advertising sign on U.S. 29, .1 mile south of Hope Drive, facing south, in Escambia County, Florida, be denied. THIS RECOMMENDED ORDER ENTERED this 24th day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 24th day of July, 1985.
The Issue The issues to be decided in this case are those associated with the question of whether the Respondent is required to have a permit for the connection of his business property to State Road 206 or is exempt from that requirement. See Section 335.187, Florida Statutes. If he is required to have a permit the issue becomes the acceptability of his current drive, i.e., does it comply with the commercial use design criteria contemplated by Chapter 335, Florida Statutes, and further described in the Florida Department of Transportation "Policy and Guidelines for Vehicular Connections to Roads on the State Highway System," February, 1985, which was recognized and incorporated by reference through Rule 14- 15.013, Florida Administrative Code. These issues are raised through an alleged violation of the Florida Statutes and Florida Administrative Code set out in the Notice to Show Cause which was forwarded to Respondent from Petitioner leading to the formal hearing. The date of that Notice to Show Cause was July 18, 1989. Within the statement of violations there were also allegations concerning irregular signs as alleged under Section 479.11(8), Florida Statutes, associated with the commercial activities by Respondent and the unauthorized parking on the right-of-way at State Road 206 in violation of Section 337.406, Florida Statutes. These latter allegations were conceded by the Respondent at hearing and are resolved through those concessions.
Findings Of Fact At the time of the hearing Respondent operated a roadside fruit and vegetable stand at property adjacent to State Road 206 in St. Johns County, Florida. In addition to fruits and vegetables, by local ordinance of St. Johns County, Florida, he is allowed to sell poultry and fish. There is no indication that he has taken advantage of that opportunity other than to sell fresh shrimp from a cooler during 1989. In addition to these products he sells honeys, jellies, and jams. He also sells soft drinks from a dispensing machine. A mainstay in his business is peanuts which he sells fresh. Another product sold is pork skins. The drink machine that is described was added in March, 1989. Before that time he sold fountain drinks and cold drinks that were dispensed from a cooler. He has always had soft drinks available from the inception of his operation of the roadside stand. That began in March, 1985. At the time the Respondent purchased the property there was an operation ongoing whereby fruit was being sold on two tables. Respondent replaced those structures with a portable trailer which was anchored to the lot, and display and sell of fruit on a 16-foot table and use of an 8-foot table upon which tomatoes were displayed and sold. The trailer was used to store his products over night. The trailer described was a pop-up camper trailer. The principal products being dispensed at that time were peanuts, vegetables, and tomatoes. Through Ordinance No. 86-68, passed by St. Johns County, a copy of which may be seen as Respondent's exhibit No. 1, the property was recognized as C1, commercial intensive, with the conditions that the property would be limited to outdoor sale of produce, vegetables, fruit, poultry, and fish. It was also stated that there would be no access/egress to United States Highway 1, which is also known as State Road 5. This property is located at the intersection of State Road 5 and State Road 206. Present access/egress to the property is from State Road 206 and that has been the situation since Respondent purchased the property. The ordinance described dates from August 12, 1986. Over time Respondent has taken a number of steps to improve his business. In March, 1988, Respondent obtained permission from St. Johns County to place a storage shed on his property. In August of that year he obtained permission to install a metal awning or carport of dimension 18 feet by 45 feet which is anchored to the ground. At that same time he placed the body from an old milk truck on the property for purposes of cold storage. In March, 1988, he had received an electrical permit from St. Johns County. Prior to that time he did not have electricity. In the spring of 1989, a well was drilled to provide running water. Prior to that time Respondent used bottled water. Respondent's composite exhibit No. 2 admitted into evidence describes various permits obtained from St. Johns County. If Respondent was required to remove the structures on his property it could be done in three days. This goes to identify the nature of the structures and to demonstrate that they are not permanent fixtures to the realty. According to Respondent, whose testimony is accepted, the business that he is experiencing at present has remained fairly constant in dollar amounts. He does not sell as many peanuts as he did before. Concerning traffic, Respondent indicates, and his testimony is accepted, that the number of cars that are located at his business would be a maximum of 12 on a busy Sunday afternoon and that at most times there are one or two cars. The hours of the business are from 8:00 a.m. until 6:00 p.m. in the winter time and somewhat longer in the summer time. The business is open seven days a week. A rough description of the nature of the property by design may be found in the documents contained in Respondent's exhibit No. 2 admitted into evidence. The property is approximately 280 front feet and 280 feet at the rear with 41 feet on each side. The frontage runs approximately east-west on State Road 206 and one of the sides abuts State Road 5. The basic design of the driveway entrance from State Road 206 is also set out in those drawings. As Marshall W. Sander, engineer in the permit department for Petitioner in its St. Augustine, Florida, maintenance office, explains the driveway is an unimproved dirt shell connection. This is the same driveway that was there at the time that Respondent purchased the property and has remained in that state since that time. Notwithstanding Mr. Sanders' concern that the driveway is not up to current commercial business criteria for access/egress, there have been no accidents as a result of access/egress from the business. There are two turnouts or turn- ins into the property. Mr. Sander believes that at least one paved driveway is needed leading into the property. The dimensions of that drive would be 24-foot wide which allows a 12-foot wide lane in and a 12-foot wide lane out. This impression of Mr. Sander is drawn in the face of the Respondent's presenting himself at the office of Petitioner in St. Augustine, Florida, with an application and plan showing the intention to improve the property to include restrooms, a beer and wine cooler with parking on site. Under those circumstances Mr. Sander felt it necessary to improve the drive connection. At hearing there was no suggestion that restrooms are available on the premises or will be in the near future, nor was there any indication that a beer and wine cooler would be installed. Therefore it cannot be said that the basic nature of the business has changed from its inception to the present. Mr. Sander concedes that within the records of the Petitioner there are no indications that the business has increased by way of records concerning traffic flow or otherwise. His remarks about increased traffic at Dupont Center is not specific enough to gain a useful impression of that circumstance. Mr. Sander relies upon the observations of the State of Florida, Department of Health and Rehabilitative Services and the St. Johns County Public Health Unit as were testified to by George L. Sigman, Environmental Health Director II for that organization. He also spoke to certain records of the health unit which may be found as Petitioner's composite exhibit 1 admitted into evidence. Nothing about his testimony or that exhibit identifies a noteworthy change in the basic nature of the business from Respondent's establishment of the roadside stand in March, 1985 until the present. Throughout the existence of his business Respondent has operated without the benefit of a driveway permit issued by Petitioner.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: By way of disposition of the Notice to Show Cause, that a Final Order be entered which recognizes the concessions made by the Respondent concerning the sign in question, calling for its removal if still in existence and his acknowledgment of the problem of parking on the right-of-way and which absolves the Respondent of any necessity to obtain a driveway permit. DONE and ENTERED this 9th day of March, 1990, in Tallahassee, Florida. CHARLES C. ADAMS 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 9th day of March, 1990. APPENDIX The following discussion is given concerning proposed facts. Petitioner' s Facts Paragraphs 1 and 2 are subordinate to facts found. The first sentence in Paragraph 3 is subordinate to facts found. The second sentence is contrary to facts found. The third sentence is subordinate to facts found. Sentences 4 and 5 depict testimony as opposed to suggesting fact finding. However, the last sentence in that paragraph is one upon which facts were found in the Recommended Order. Respondent' s Facts Paragraphs one and two pertain to withdrawal of the request for hearing concerning signs and parking and are not part of fact finding. The first sentence in paragraph 3 is subordinate to facts found. The remaining sentence is legal argument, as are paragraphs 4 and 5. Paragraphs 6-11 are subordinate to facts found. Paragraph 12 is not relevant. Paragraphs 13 and 14 are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Leo O. Myers, Esquire Post Office Box 1621 Jacksonville, FL 32201 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact The Department presented evidence that its inspector discovered a sign located on State Road 71, 0.3 miles south of Interstate 10. Inspection revealed that the sign did not have a permit affixed as described in Section 479.07, Florida Statutes. The sign's informative content was visible from the traveled way of the place known as State Road 71. The distance from the sign to the pavement was measured and, to within inches, was determined to be 64 feet. The sign was inspected in July of 1978, and again on May 2, 1979. It was in essentially the same condition on both occasions. The Department of Transportation presented no substantial and competent evidence regarding the ownership of the sign. The message on the sign advertised Stephen's Chevron; however, no evidence was presented that Henry Stephens, the Respondent, had any real relationship with Stephen's Chevron. NO substantial and competent evidence was presented that the place known as State Road 71 was a highway within the definition of federal aid primary highway. No substantial and competent evidence was presented that the place known as State Road 71 was a highway as defined for the purposes of Chapter 479.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that no action be taken against the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Charles M. Wynn, Esquire Post Office Box 793 Marianna, Florida 32446
Findings Of Fact Stipulated Facts Facts set forth in paragraphs 1.-13., below, are agreed to by the parties. The Petitioner in this matter, Racetrac Petroleum, Inc., owns a parcel of land in Hernando County, on the southwest corner of State Road 50 and Windmere Extension. The parcel is located east of the Interstate 75/State Road 50 interchange. Petitioner has constructed a service station and convenience store at that location. State Road 50 has been classified as a Class 3 Road east of Interstate 75, with a posted speed limit of 45MPH. Interstate 75 is a limited access facility and the Interstate 75/State Road 50 interchange is a limited access interchange. To the west of Petitioner's parcel, and closer to the Interstate 75 interchange, is a Texaco service station which abuts State Road 50 and has two driveways to State Road 50. The Texaco service station does not abut any other road or connection to State Road 50. Abutting the east property line of Petitioner's parcel is a parcel that also abuts State Road 50 and on which a McDonald's restaurant is located. Along the common property line between the two parcels is a joint ingress and egress easement. This joint ingress and egress easement remains in effect as of this date. At this time, there is a four-lane paved facility on the easement which is east of Petitioner's parcel and on McDonald's parcel. That facility currently provides the only vehicular route to and from State Road 50 for Petitioner's parcel, the McDonald's parcel and the parcel to the south. The four-lane facility between Petitioner and McDonalds was originally constructed by McDonalds as a three-lane facility to serve its parcel, Petitioner's parcel and the parcel to the south. On December 16, 1992, during the construction of its service station and convenience store, Petitioner applied to Respondent DOT for a permit to modify the existing facility. The December 16, 1992, permit application proposed to "modify existing driveway per the request of Hernando County (Increase existing radius from 25' + to 50)." DOT approved Permit No. A-08-92-0023 on February 19, 1993. Petitioner completed construction of a service station and convenience store on the parcel and modified the facility in accordance with DOT's Permit. On June 15, 1993, Petitioner filed an application with DOT for an access connection permit to construct and operate a 28-foot wide right-in/right- out access connection to State Road 50, 185 feet west of the original driveway. The application was assigned Application No. A-08-93-0034P by DOT. On July 12, 1993, DOT issued a Notice of Intent to Deny the application. The Notice of Intent to Deny stated that the application was being denied for the following four reasons: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal falls to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing "joint use" access located 185' east of the proposed access connection. Proposed access connection may create safety and operational problems within the operational sphere of the Limited Access Interchange. The Notice of Intent to Deny also stated that Petitioner could appeal the intent to deny or submit a revised application within 30 days of receipt of the Notice. On September 13, 1993, Petitioner submitted plans for a right-in only connection to State Road 50. Accompanying the plans was a supporting traffic study and a transmittal letter. On October 7, 1993, DOT issued a letter which acknowledged receipt of the September 13, 1993, submittal and presented the following reasons why DOT's Notice of Intent to Deny would remain in effect: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal fails to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing easement located 185' east of the proposed access connection. None of the original reasons for denial were addressed. The Highway Capacity Software weave analysis in the Supplemental Traffic Report shows no benefit to the State Highway System. The traffic count and turning movement data indicate that the 4 lane facility is operating within capacity, thus showing that existing access is adequate. There is a significant difference in the rate of deceleration for vehicle entering the proposed driveway (5.81 mph/s) and the existing driveway from the ramp end (4.36 mph/s). The deceleration rate for vehicles entering the proposed driveway exceeds 5.5 mph/s. This rate is described in the ITE Transportation and Traffic Engineering Handbook as reasonably comfortable for car passengers. The proposed "Right In" geometry cannot reasonably accommodate WB-50 or WB-40 Vehicles. The Radius of Return at the Windmere Road entrance is 50'. The radius was improved from 40' and can now accommodate WB-50 vehicles. 1O. The site entrance is located some 200' from SR 50. There is ample space for truck movements given the existing access. The October 7, 1993, letter stated that DOT's Notice of Intent to Deny would remain in effect and that DOT would accept a response within eleven days of the receipt of the letter. The letter further stated that, if there was no response within eleven days, any future requests for connection would require a new application along with the applicable fee. On October 21, 1993, Petitioner filed the first petition for a formal hearing, which was assigned DOAH Case No. 93-6932. On December 15, 1994, Petitioner filed the second petition for a formal hearing, which was assigned DOAH Case No. 95-0248. Other Facts Petitioner's first interaction with DOT regarding access to State Road 50 resulted from meetings in late 1991 with DOT District 7 representatives. Access at the front of Petitioner's property, via a right-in/right-out driveway, was discussed during two or three meetings between representatives of the two parties. Petitioner was advised at that time of DOT's position that the proposed connection with State Road 50 could not be approved due to safety concerns about the impact of the connection on the operation of the interchange ramp coming off the interstate and the auxiliary lane on State Road 50. Petitioner was advised that the only access would be that afforded by the Windmere Extension, the four-lane facility located on the property easement between Petitioner's parcel and McDonalds. Windmere Extension is properly classified as a joint access connection to State Road 50. The pavement on the joint access easement terminates at the property lines of Petitioner and McDonalds with a barrier erected at the end of the drive. On December 5, 1992, DOT issued a Notice of Conceptual Review Findings, stating the following reasons for the denial: The proposed connection on State Road 50 encroaches into the merge lane from Inter- state 75; The proposed connection does not meet the requirements to be located a minimum of 1320 feet from the terminus point of the taper from the interstate; The frontage road immediately adjacent to the parcel on the east is designed to provide access to the site. Following receipt of the Notice of Conceptual Review Findings, Petitioner's representative applied again for a conceptual review in order to obtain direct affirmation that access would be afforded only via the Windmere Extension. DOT responded with a second denial specifically stating that access must be accomplished via Windmere Extension, the frontage road east of the property. Thereafter, Petitioner closed on the purchase of the property, apparently satisfied that Windmere Extension afforded adequate vehicular access for a convenience store and gasoline station. Petitioner normally attempts to ascertain property access prior to purchase. Petitioner's property is not properly classified as an isolated corner property under DOT's rules. Rather, Windmere Extension functions as a common access drive, as opposed to a road. It is the existence of Windmere Extension as an established access point for Petitioner that prevents the catagorization of Petitioner's property as an isolated corner property. In 1992, during the development of Petitioner's parcel, Petitioner applied for and received a permit from DOT to perform modifications on the Windmere Extension. Petitioner's representative confirmed his understanding with DOT's District 7 representative that this permit would be the only driveway requested by Petitioner. At the time of Petitioner's request for a permit to accomplish modifications to the Windmere Extension, McDonalds held an access permit for the Windmere Extension but was not made a party to the modification permit and has remained silent regarding the matter. In spite of the previous confirmation of Petitioner's representative of access via Windmere Extension, Petitioner applied in June, 1993, following completion of construction of their facility, for direct access to State Road 50 via a right-in, right-out connection. After denial of the requested right-in, right-out connection and prior to any request for formal administrative proceedings pursuant to Chapter 120, Florida Statutes, Petitioner requested the right-in connection on September 13, 1993. The request was filed subsequent to a conference between representatives of Petitioner and DOT which had been held to determine whether any basis existed upon which to mitigate denial of the requested right-in, right-out connection. Immediately upon exiting from Interstate 75 on to State Road 50, the first business entity on the right hand side is a Texaco service station. The Texaco station is an older facility and continues to utilize its only access to State Road 50, both right-in and right-out exits. Petitioner's proposed right-in only connection is less than 440 feet from Texaco's nearest driveway and is less than 440 feet from Windmere Extension. The proposed right-in only connection is less than 440 feet from the end of the taper of the eastbound exit ramp from Interstate 75 on the south side of State Road 50. The ramp extends into an auxiliary lane that continues eastward on State Road 50 and ends just past Windmere Extension. The purpose of the rule-required interval of 440 feet from the end of the taper of the exit ramp to the provision of an access point reflects a concern for safety. The spacing interval provides drivers exiting, in this case Interstate 75, with an opportunity to look rearward and pick a gap in through traffic and merge into the through lanes without the complication of also having to look forward to identify upcoming connections. The end of the taper of the exit ramp must be ascertained in order to determine where the 440 feet interval begins. An appropriate way to make this determination is to observe vehicles using the auxiliary lane to merge into the through lanes of State Road 50. The majority of the traffic exiting Interstate 75 via the eastbound State Road 50 ramp merges to the through lanes in front of the Texaco station and establishes the "functional end of the taper" as just east of Texaco's easternmost driveway. At this point, most vehicles exiting Interstate 75 have completed their merging movements to the through lanes of State Road 50. This location is consistent with the standard taper rate used by DOT to design ramps. The presence of a stoplight and a yield sign at the ramp for Interstate 75 and State Road 50 does not limit the influence of the interchange to the area west of the Texaco station. As established by observations made of vehicles entering the auxiliary lane from Interstate 75, most vehicles did not come to a stop at the yield sign before turning to the right and heading to the east. The area of influence of the interchange extends a considerable distance to the east. The Texaco station is closer to the Interstate than Petitioner's property, but it has little observed traffic. No evidence was presented probative of any significant safety or operational problem for the interchange ramp or State Road 50 which is occasioned by the placement of the Texaco Station. Constructed in the early 1970's, the station predates DOT access management spacing standards. Connections constructed prior to the adoption of those access management standards are "grandfathered." The Windmere Extension provides reasonably safe and efficient access to Petitioner's property on State Road 50. Observations support findings that petroleum product laden tankers are able to enter and exit the property, that passenger vehicles enter and exit without problems with their movements, and larger vehicles also enter and exit the property without backing traffic up onto the state highway. The joint access connection at Windmere Extension provides sufficient access to reasonably serve needs of Petitioner's property. Traffic flows effectively between Petitioner's property and State Road 50 via the joint access connection. The Petitioner's gasoline station appears to be reasonably busy. As documented by video tapes admitted in evidence, traffic is observed to be regularly entering and leaving the property. The station has been observed with all fueling stations occupied. Those occasional problems encountered with large vehicles on Petitioner's property appear to be susceptible to alleviation by on- site changes. The layout for the State Road 50 location is pretty much a standard site plan for Petitioner's properties. Petitioner's store and gasoline pumps are generally located toward the front of the parcel, facing State Road 50. At this time, the only function of the access connection at Windmere Extension is to provide vehicular access to the Petitioner and McDonald's parcels. As previously noted, a barrier marks the conclusion of Windmere Extension at the southern property boundary of the Petitioner and McDonalds parcels. No evidence was presented that development of the parcel to the south of these two businesses was impending. Absent development to the south, there is no reason to expect growth in traffic on Windmere Extension except due to growth of business for the Petitioner and McDonald's properties. Until development occurs, Windmere Extension will continue to provide reasonably safe and efficient access to Petitioner's property. The right-in only access connection proposed by Petitioner would create an unsafe condition on State Road 50. Petitioner proposes to locate the connection in an auxiliary lane extending from an Interstate 75 exit ramp. Most motorists exiting the Interstate and heading east use that portion of the auxiliary lane to merge with eastbound traffic lanes while other motorists merge into the auxiliary lane in anticipation of turning right at Windmere Extension. Most of the traffic merging into through lanes complete that maneuver in front of the Texaco station, while motorists merging to turn right at Windmere Extension complete that maneuver at the proposed connection location. The addition of the proposed right-in connection would cause some portion of the traffic currently turning right at Windmere to turn at the proposed connection, increasing conflicts between vehicles exiting Interstate 75 and accelerating into through lanes with those automobiles decelerating from State Road 50 in preparation for a right turn at Windmere Extension or the new proposed connection. Drivers from State Road 50, intending to enter the new connection, would merge into the ramp/auxiliary lane in front of the Texaco station, right where the majority of drivers currently accelerate and merge out into State Road 50. The simultaneous acceleration and deceleration of vehicles merging into and out of the auxiliary lane in front of the Texaco station would create a substantial safety problem for State Road 50. Distance would be shortened within which drivers must observe other traffic, pick their gap and merge into the other lane. Eastbound drivers exiting Interstate 75 to State Road 50 will be looking to the rear to pick their gaps as opposed to looking to those vehicles ahead in the auxiliary lane. In addition, the proposed connection would create a safety problem for the substantial number of eastbound drivers that would not enter the new connection but would continue down the auxiliary lane to turn right at Windmere Extension to patronize McDonalds. Drivers exiting Interstate 75 that turn right at Windmere tend to remain in the auxiliary lane the entire time. These drivers will be behind slowing vehicles that are turning into the new connection. To escape the slowing vehicles, eastbound auxiliary lane drivers will tend to encroach into the through lane as they pass around the turning vehicles. Similarly, eastbound State Road 50 drivers who normally merge into the auxiliary lane in front of the proposed connection will remain in the through lanes longer and either begin decelerating in the through lane, creating a speed differential in that lane, or will have to decelerate at an uncomfortable rate over a shorter distance in the auxiliary lane. The short length or "throat" of the proposed connection, coupled with the need of turning vehicles to avoid other vehicles on the Petitioner site, pose additional safety problems. Larger vehicles, such as semi-trailers with a 50-foot wheelbase, recreational vehicles, and trucks towing trailers will have difficulty entering the site if other vehicles are moving in front of the pump islands or larger vehicles are parked at the pumps. Some semi-trailers entering the proposed driveway would have to pass under the edge of the canopy that overhangs the gasoline pumps in order to make a turn. Similar difficulties can be expected when vehicles are maneuvering in the area between the pumps and State Road 50. Larger vehicles entering the proposed connection will have to slow or stop to avoid moving vehicles already on the property, creating an operational and safety hazard on State Road 50 as traffic queues in the connection. There is a greater likelihood that vehicles caught in a queue will back out onto State Road 50 at the proposed location than if they enter at Windmere. Alternatively, the diversion of right-turning vehicles into the new connection would not significantly improve the safety of the intersection of State Road 50 and Windmere Extension. There are presently no significant conflicts between westbound vehicles turning left into Windmere Extension and right-turning vehicles. The westbound left-turning vehicles that are delayed by traffic are normally blocked by eastbound through traffic, rather than right- turning vehicles. As set forth in an attachment to Petitioner's Exhibit 16 entitled Guidelines for Driveway Location and Design placement of connections within the functional area of an intersection is not advised. The location of the proposed connection is at about the end of the functional area of the Interstate 75 interchange, but the functional area of the State Road 50/Windmere intersection can be said to extend west of the proposed connection. The current access arrangement is safer than the situation that arises after construction of the proposed connection. Petitioner's September 13, 1993, submittal to DOT of a proposed right- in only connection was not a revised application under Rule l4-96.007(2)(b) but rather an informal proposal submitted as a result of a meeting between DOT and Petitioner's representatives. Subsequent to DOT's denial of Petitioner's request for a right-in, right-out connection, Richard Peoples, Petitioner's vice-president in charge of site design, authorized the submission of the September 13, 1993 right-in only proposal and intended that both the original right-in/right-out proposal and the revised right-in proposal be "on the table." People's testimony at the final hearing to the effect that the second submission was meant to be a revised application is in conflict with his earlier deposition testimony that all offers were on the table. His final hearing testimony on this point is, accordingly, not credited. People's deposition testimony substantiates DOT's position that the second submission by Petitioner did not constitute the submission of a revised or amended application. DOT's October 7, 1993, letter conveyed rejection of both the originally proposed right-in/right-out connection and the right-in only proposal. The letter acknowledges receipt of the drawings and the supporting traffic study associated with the second submittal. Several of the enumerated comments in the letter expressly reject or comment negatively on the contents of the September 13, 1993, submittal. Subsequent to the issuance of the October 7, 1993, letter, Richard Baier, an employee of DOT charged with consideration of the connection application, had a telephone conversation with Petitioner's representative Lawrence Hagen and verbally advised him that DOT had rejected Petitioner's proposed right-in only connection. Hagen understood that the proposed right-in only connection had been rejected. Petitioner's October 21, 1993, petition for formal hearing was filed 38 days after DOT received the September 13, 1993, submittal from Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's applications. DONE and ENTERED this 27th day of October, 1995, in Tallahassee, Florida. DON W. DAVIS, 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 27th day of October, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-3. Accepted. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, hearsay. Rejected, not supported by weight of the evidence. Accepted. Rejected, absence of direct evidence. 13.-17. Rejected, not dispositive of material issues presented. Accepted, not verbatim. Rejected, subordinate to HO findings. 20.-21. Rejected, not materially dispositive. 22. Accepted. 23.-25. Rejected, not dispositive of material issues. 26. Rejected, not supported by the weight of the evidence. 27.-28. Rejected, relevance. 29.-30. Rejected, subordinate to HO findings. 31. Accepted. 32.-33. Rejected, subordinate, relevance. 34. Rejected, not supported by weight of the evidence. 35.-36. Rejected, subordinate to HO findings. Accepted, but not verbatim. Rejected, not supported by weight of the evidence. Accepted, not verbatim. Rejected, subordinate to HO findings. Rejected, legal argument. Rejected, subordinate to HO findings. Rejected, not supported by weight of the evidence. Rejected, subordinate to HO findings. 45.-48. Rejected, not supported by weight of the evidence. 49. Accepted. 50.-51. Rejected, subordinate to HO findings. 52.-56. Rejected, not supported by weight of the evidence. 57.-59. Rejected, subordinate to HO findings. 60. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-14. Accepted. Rejected, redundant. Accepted. 17.-20. Rejected, unnecessary. 21.-57. Accepted in substance, but not verbatim. COPIES FURNISHED: Paul Sexton Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 John H. Beck J. Victor Barrios Ellen Chadwell Attorneys at Law Beck Spalla et al. 1026 East Park Avenue Tallahassee, FL 32301 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 605 Suwannee Street 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact On or about August 11, 1987, Respondent owned a sign advertising the business which was located on the DOT right-of-way along U.S. 41 in Pasco County. When Respondent moved into its present location it placed some of its castings on display on the right-of-way alongside its business. The co-owner was told by the Deputy Sheriff that the castings had to be removed from the right-of-way but it was all right to leave the sign on the DOT right-of-way. Accordingly, until the sign was cited for the violation, Respondent thought its sign was legally erected.
