The Issue Whether the Department of Transportation (hereinafter referred to as the "Department") should close the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent's business located at 2770 Northwest 79th Street, Miami, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent owns and operates a business, J'S Trading Post, which is located on the south side of Northwest 79th Street, just west of Northwest 27th Avenue, in Miami, Florida. Northwest 79th Street is an east-west roadway that is part of the State Highway System, having been designated State Road 934. Although Northwest 79th Street is part of the State Highway System, that segment of the roadway at issue in the instant case has not yet been given an access classification by the Department. The roadway segment has a posted speed limit of 40 miles per hour. Northwest 27th Avenue is a north-south roadway that is also part of the State Highway System, having been designated State Road 9. Northwest 79th Street and Northwest 27th Avenue form a "four legged" intersection. Northwest 27th Avenue is the major approach to the intersection. It has three through lanes (including a combined through/right turn lane), as well as an exclusive left turn lane, in each direction. Northwest 79th Street is the minor approach to the intersection. It also has three lanes (including a combined through/right turn lane) in each direction. Left turns from Northwest 79th Street onto Northwest 27th Avenue, however, are not presently permitted. Both Northwest 79th Street and Northwest 27th Avenue have restrictive medians at the intersection approaches. The Department conducted a traffic study and analysis of the intersection of Northwest 79th Street and Northwest 27th Avenue in 1993, which revealed, among other things, the following: the average speeds of eastbound and westbound traffic in the intersection were 35 and 38 miles per hour, respectively; the intersection's morning and afternoon peak hour volumes were 4,588 and 5,250 vehicles, respectively; the levels of service (LOS) for the intersection's morning and afternoon peak hours were D (with a 39.3 second delay) and F (with an undetermined amount of delay), respectively; and the intersection had been the site of a significant number of accidents.1 Following the completion of the study and analysis of the intersection, the Department reasonably determined that, in the interest of operational efficiency and safety, exclusive left turn lanes should be added to Northwest 79th Street at the intersection. There is presently an opening in the restrictive median that separates the eastbound and westbound lanes of Northwest 79th Street to the west of the intersection. The distance from the centerline of the median opening to the centerline of the intersection is 260 feet. The median opening is near, but not directly across from, the driveway that connects Respondent's property with the eastbound lanes of Northwest 79th Street. Westbound motorists on Northwest 79th Street use the median opening to access Respondent's property and other nearby driveways, even though such a maneuver is dangerous inasmuch as it involves the motorist travelling westbound for a short distance in the eastbound lanes of the roadway. The planned addition of an exclusive left turn lane on eastbound Northwest 79th Street will result in the closure of the median opening and the elimination of this safety hazard. Notwithstanding that it will be more inconvenient for westbound motorists on Northwest 79th Street to get to and from Respondent's business, it is prudent, from a traffic engineering and safety perspective, to close the median opening. Although Respondent's and his customers' direct access to and from Northwest 79th Street will be restricted if the median opening is closed, such access will not be eliminated entirely as a result of the closure. They will still have direct access to and from the eastbound lanes of the roadway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order rejecting Respondent's challenge to the Department's proposed closure of the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent s business. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September, 1994. STUART M. LERNER 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 September, 1994.
The Issue The issues are (1) whether a driveway connection on Respondent's property in Auburndale, Florida, is subject to closure because it poses safety concerns, and (2) whether a second driveway connection on Respondent's property should be modified because it fails to meet current access management standards.
Findings Of Fact A. Background The Department is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla. Stat. State Road 544 is a part of the state highway system. Since 1998, Respondent has owned a small, irregularly shaped parcel of property located at 502 Havendale Boulevard (State Road 544), Auburndale. The 0.46-acre parcel lies on the southeast corner of the intersection of State Road 544 and 42nd Street Northwest. Commercial establishments are located on the other three corners. In December 1998, Respondent leased the property to a tenant who operates Townsend Motors, a used car lot. The business has operated continuously at that location since that time. Aerial photographs reflect the lot has a capacity of around 30 or so vehicles. Most vehicles are displayed where the triangle-shaped lot comes to a point at the intersection and along the side of the lot facing State Road 544. Other vehicles are parked throughout the middle or rear of the lot. They are rearranged from time to time to enhance sales. To replace cars that are sold, the tenant typically buys a few cars at a time, which are delivered by a tow truck. Auto carriers and large trucks with trailers are not used to deliver vehicles. On the "rare" occasion in the past when a "big transport" made deliveries, the truck used the parking lot in a nearby Publix store to the east. State Road 544 is classified as a class 7 road. See Fla. Admin. Code R. 14-97.003(1), Table 2. That classification is assigned to roads where adjacent land is developed to the maximum feasible intensity and roadway widening is limited. See Fla. Admin. Code R. 14-97.003(2). The regulation provides that a driveway connection on a class 7 road must be at least 125 feet from an intersection and at least the same distance from other connections. This amount of spacing reduces driver confusion and the potential for rear-end collisions. Respondent's parcel has two driveway connections, less than 125 feet apart, facing State Road 544. The first connection is approximately 60 feet east of the intersection and is known as the western connection. The second connection lies further east and is known as the eastern connection. A third driveway connection is located on the western side of the parcel facing 42nd Street Northwest. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla Admin. Code 14-96.011(3)(a). Neither connection on State Road 544 is permitted. A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). Because the driveway connections were in place before 1988, they qualify for that status. To retain that status, however, a driveway must be consistently used by the owner. If use is discontinued for a period of one year or more, the use is considered abandoned. See Fla. Admin. Code R. 14-96.005(2)(c). If a driveway loses its grandfathered status through abandonment, the owner must apply for an access permit; otherwise, the driveway is subject to closure. A connection that retains its grandfathered status may still be modified if safety or operational issues exist. See Fla. Admin. Code R. 14- 96.011(4)(b)(the Department may modify a grandfathered connection "if such modification is determined to be necessary because the connection would jeopardize the safety of the public or have a negative impact on the operational characteristics of the state highway"). The parties agree the eastern driveway is grandfathered and has been consistently used by the tenant since 1998. There is a dispute over the status of the western driveway. The Department must allow owners of private properties adjoining a state road to have "reasonable access" to and from their property. See § 335.18(2)(a), Fla. Stat. As a general rule, limiting the number of driveway connections promotes better traffic movement and an increased level of safety and mobility for the system as a whole. To determine the number of connections necessary to establish reasonable access, the Department considers the projected connection and roadway traffic volumes, the type and intensity of the land use, the access management classification of the state road, and the standards for that classification. See Fla. Admin. Code R. 14-96.002(25). The Intersection Project The genesis of this dispute is a safety project (Project) at the intersection of State Road 544 and 42nd Street Northwest adjacent to Respondent's property. The Project was initiated after the Department received pedestrian complaints concerning safe travel across the intersection to access retail and food stores and a lack of crosswalks that comply with the Americans with Disabilities Act (ADA). The Project is only 0.038 miles in length and is limited to improvements at the intersection and the installation of sidewalks adjacent to Respondent's parcel and the three other corner commercial properties. There will be minimal impact to current vehicular patterns, and no increase in capacity is expected. Part of the design effort for the Project included an evaluation of existing driveway connections for potential modifications that will improve traffic safety or traffic operations on the roadway. This evaluation was limited to driveways on State Road 544, as the Department has no jurisdiction over driveways on 42nd Street Northwest, a local road. During the planning process, the Department noted that the western driveway is less than 125 feet from the intersection, violates spacing requirements, and raises safety concerns. Accordingly, the Department proposes to remove it, "saw it over," and install type F curb and gutter along the roadway. To comply with access management standards for class 7 roads, the Department also proposes to narrow the width of the eastern driveway from around 60 feet to 36 feet and "widen the wings somewhat" to allow larger vehicles to swing into and out of the car lot. (Wings are the sides of the driveway that slope down from the top of the curb to the street level.) No changes to the driveway facing 42nd Street Northwest are proposed, and no other driveways on State Road 544 near the intersection will be modified. The Department determined that no other practical alternatives to this action exist. Based on its evaluation of the property, the Department concluded that one direct connection on State Road 544 and an indirect connection on 42nd Street Northwest, a local road, provide reasonable access to the property. The Department intends to install new pedestrian signal poles and increase access to a nearby bus stop. The Project includes connected sidewalks for the four commercial properties on the corners of the intersection and enhanced special emphasis crosswalks that are designed to comply with the ADA and connect to the existing Publix sidewalk to the east. The high-visibility crosswalks, pedestrian signalization improvements, and removal of the western driveway will improve traffic movement through the intersection and enhance motorist, bicycle, and pedestrian safety. A Department Safety Office Benefit Cost Analysis revealed there were a total of 60 rear-end or angle crashes at the intersection during the five-year period 2010 through 2014 and that some could have been prevented with better signage and signals. The study projects 11 crashes will be avoided over the upcoming five-year period once the Project is completed. Besides reducing angle and rear-end crashes at the intersection, the proposed modifications will improve safety and operational conditions for pedestrians and motorists who will have greater connectivity to adjacent commercial properties. Respondent's Objections Respondent raises a number of objections to the Department's proposed action. She contends the western driveway is not abandoned, and even though it fails to meet current spacing requirements, it should not be closed; the proposed modification to the eastern driveway is not warranted by safety or operational concerns; the Department violated a number of statutory provisions during the process leading up to the issuance of the Notice; the proposed action will deny her and the tenant reasonable access to the property; and the changes will reduce the value of the property. The Western Connection To comply with insurance requirements, in 1998 the tenant erected bollards (short vertical posts embedded in the driveway) around most of the parcel to restrict access to the premises. Among other locations, bollards were placed along the entire back side of the western connection, blocking off vehicle access through that driveway. Bollards were also placed on roughly half of the back side of the eastern connection, leaving less than 30 feet open to allow vehicles to enter and exit the premises. Even though the bollards remained in place for almost 20 years, Respondent considers them nothing more than temporary fixtures, as they could be removed at any time by sawing them off at ground level or pulling them out of the concrete. The bollards remained in place until shortly after the Notice was received by Respondent in early January 2017. They were then removed by the tenant from the western driveway (and other areas). The tenant denies the Notice triggered their removal and maintains they were removed to provide "extra room for the FedEx and stuff like that to get in." He added that his current insurance company no longer requires bollards for security purposes. The Department contends the western driveway connection was abandoned because bollards blocked vehicle access through the driveway from December 1998 until January 2017. The tenant's testimony confirms this assertion. The tenant admits he has "not frequently [been] using the westernmost driveway," but maintains the connection was never abandoned, as Fedex trucks and the mail carrier regularly parked on the driveway apron, which lies between the roadway and the bollards. Emergency responders also use the apron when responding to accidents at the intersection, and disabled vehicles traveling eastbound on State Road 544 are pushed onto the apron. The bottom line is that even though the apron may have been used, the driveway itself was not, and the connection was basically used as a "pull-off." In fact, the tenant acknowledged that until January 2017, except for customers who used the parking lots of adjacent businesses located south of the parcel, all other customers used the eastern connection to access the property. The evidence supports a finding that, even if the car lot has remained in business continuously, and Respondent did not intend to abandon the driveway, for the reasons stated above, it was effectively abandoned for more than one year. Because the western driveway is only 60 feet from the intersection and violates spacing standards, it is subject to closure based on safety concerns. Without closure, additional traffic will enter and exit the car lot, there will be less driver reaction time for vehicles to stop, and it will increase the potential for more pedestrian injuries and vehicle crashes. The Eastern Connection The eastern driveway is 58 feet wide when measured at the back of the property line. Until January 2017, less than 30 feet were usable because bollards blocked the remainder of the connection. The maximum width for a class 7 driveway connection is determined by the number of vehicle trips per day that enter a property and whether the connection is in a rural or urban location. Under current design standards for urban locations, a 24-foot driveway connection is typically allowed. See Dep't Ex. 15. Assuming a large volume of traffic entering or exiting the driveway, a maximum of 36 feet may be permitted. Id. Although there is no evidence that a large volume of traffic enters or exits the premises, after speaking with the owner's representative, Mr. Combee, the Department agreed to increase the width from 24 feet to 36 feet and widen the sides (wings) to make the driveway more accessible by customers and vehicles making deliveries. By comparison, the nearby Publix store has a 24-foot connection to State Road 544, although it also has several indirect connections on the local streets. The modified connection is of sufficient length and size for vehicles to enter and exit the premises. Other Objections Notice Respondent contends the Department did not comply with section 335.199(1), Florida Statutes, before issuing the Notice. That subsection provides as follows: Whenever the Department of Transportation proposes any project on the State Highway System which will divide a state highway, erect median barriers modifying currently available vehicle turning movements, or have the effect of closing or modifying an existing access to an abutting property owner, the department shall notify all affected property owners, municipalities, and counties at least 180 days before the design of the project is finalized. The department's notice shall provide a written explanation regarding the need for the project and indicate that all affected parties will be given an opportunity to provide comments to the department regarding potential impacts of the change. Subsection (3) of the statute also requires at least one public hearing in the jurisdiction where the project is located. The Department has always construed this provision as applying only to large projects that involve an expenditure of "upward of a million dollars" and take out or block medians, remove turn lanes, or reconfigure intersections in conjunction with a modification or closure of a driveway connection. Because the Project entails the expenditure of $119,936.00, and only new curbs, sidewalks, striping, and pedestrian signals are contemplated, the Department considers it a "very limited scope" project and one that does not implicate the statute. For small projects such as this, the Department provides preliminary notification to the property owner and tenant, if any; a written notice setting forth the proposed agency action and the reason for the changes; an opportunity for the owner to meet with Department representatives to express concerns; notice to the affected local governments; and ultimately an administrative hearing, if one is requested. This process complies with section 335.1825(3), which only requires "reasonable notice" to the owner before closing an unpermitted connection. Before the Notice was issued, oral notice regarding the Project was given to the tenant by a Department representative. During the meeting, the tenant told the representative that he "didn't mind" if the western driveway was removed. Also, a Department representative spoke by telephone with Mr. Combee before the Notice was issued, but Mr. Combee says he was under the impression the Department was only seeking to close the connection on 42nd Street Northwest. An on-site meeting with Mr. Combee and his counsel was conducted in February 2017. Based on concerns expressed by Mr. Combee, the Department agreed to increase the width of the eastern driveway from 24 to 36 feet and widen the wings to provide greater accessibility into and out of the lot. Besides meeting with the tenant and Mr. Combee, the Department informed the City of Auburndale and Polk County about the intersection project and asked them whether any comments had been received from the public regarding the intersection. Assuming arguendo that section 335.199 applies to every project involving the closure or modification of a driveway connection, regardless of its size, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Lack of an Engineering Study Respondent contends the Department violated Florida Administrative Code Rule 14-96.011(4)(b) by failing to conduct a formal engineering study to substantiate the safety and operational concerns for closing and modifying the connections. In lieu of a signed and sealed engineering study, the Department performed a Safety Cost Benefit Analysis documenting the five-year crash history at the intersection. The study also includes an engineer's estimate of the type and cost of specific improvements planned to improve the safety of motorists and pedestrians at the intersection. See Resp. Ex. 5. Nothing in rule 14-96.011(4) or (5) requires that a formal engineering study be conducted before closing an unpermitted connection or modifying a grandfathered connection. In fact, the rule cited by Respondent provides the "problem may be substantiated by an engineering study signed, sealed, and dated by a professional engineer registered in the State of Florida." (emphasis added). Therefore, both driveways are subject to removal or modification without any type of formal study being conducted. Here, the Department relied on a study of the crash history at the intersection, access management standards for connections on class 7 roadways, and safety concerns expressed by members of the public. These measures are adequate to support the Department's proposed action. Reasonable Access Respondent contends the Department's proposed action leaves her without "reasonable access" to the property. To support this contention, her engineering expert opined that both driveways on State Road 544 are necessary in order for large trucks making deliveries to enter and exit the lot. The engineer assumed incorrectly, however, that semi-trucks and trailers now access the property to make deliveries, and a 36-foot driveway will be too small to accommodate that type of vehicle. He also opined that large trucks cannot access the property through the 42nd Street Northwest connection because a building is located in the middle of the parcel and prevents them from being driven across the lot and exiting through the eastern connection. The expert agrees a 36-foot driveway provides reasonable access for automobiles and small trucks. The evidence shows that replacement vehicles are normally delivered by a tow truck hauling no more than one or two at a time and large semi-trucks and trailers do not make deliveries at the property. Assuming that the mail carrier or FedEx wish to continue parking where the apron now sits while they deliver the mail or a package, they can do so by pulling over the six-inch curb and parking on the grass. The evidence supports a finding that one direct access point on State Road 544 and one indirect access point on 42nd Street Northwest provide reasonable access to the property and result in safer and more efficient access to the state highway system. Economic Concerns Respondent contends the value of her property will be diminished as a result of the closure of the western connection. However, economic injury is not a statutory consideration for closing or modifying connections, and redress for that type of injury, if any, lies in another forum. Management of Project The Department routinely allows construction project administrators who are not professional engineers to manage the day-to-day work on intersection projects such as this. While the project plans were signed and sealed by a professional engineer, who is the project engineer of record, a construction project administrator, Mr. Freeman, will take the plans and "make it a reality in the field." Respondent contends Mr. Freeman is violating section 471.003(1) by performing certain investigative, evaluating, planning, and designing activities without an engineering license. Assuming arguendo this is true, jurisdiction over that issue lies with the Florida Board of Professional Engineers and not the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order approving the closure of Respondent's western driveway and modification of the eastern driveway, as part of the Department's State Road 544 Safety Project. DONE AND ENTERED this 9th day of June, 2017, in Tallahassee, Leon County, Florida. S R. ALEXANDER 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 9th day of June, 2017. COPIES FURNISHED: Michael J. Dew, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Richard E. Shine, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) David W. Holloway, Esquire David W. Holloway, P.A. 13100 Park Boulevard, Suite B Seminole, Florida 33776-3539 (eServed)
The Issue The issue in the case is whether the Department of Transportation (Department) proposal to close a driveway connection between a state highway and property owned by the Kyriakou Revocable Trust Agreement (Petitioner) should be approved.
Findings Of Fact The Department is the state agency responsible for regulating access to the state highway system. The Department has commenced construction of highway improvements on US 19 in Pasco County, Florida. US 19 is a state highway, also identified as State Road 55. The project is known as the "US 19 Continuous Right Turn Lane Safety Improvement Project." The Pasco County portion of the project is 11 miles long, four miles of which are currently under construction. The project is intended to improve the safety of the highway by reducing the frequency of rear-end collisions, to improve pedestrian safety, and to facilitate mass transit operations. The project includes installation of a continuous right-turn lane, where feasible, as well as pedestrian sidewalks and median alterations. The addition of a continuous turn lane will allow drivers to execute right turns after leaving traffic lanes, thereby reducing the incidence of rear-end collisions. The Department is not planning to acquire additional property. The project is being constructed within existing right-of-way. The Petitioner owns a parcel of commercial property located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. The parcel has been owned since 1986 by Soterios Kyriakou and Nomiki Kyriakou, as husband and wife, who transferred ownership to the Petitioner in 2005. The parcel is platted as a single lot and is bordered to the east by US 19 and to the north by a county road, Buena Vista Lane. Two driveways connect the parcel to US 19. One of the project goals was to reduce the numerous driveways that connect private parcels to US 19. Limiting driveway connections to the highway promotes safe traffic flow. In evaluating the four-mile segment prior to design, the Department reviewed more than 200 existing connections between the highway and adjoining parcels for compliance with safety and design criteria. Driveway width and space parameters are generally based on vehicle count and highway classification. Many of the existing connections were excessively wide or insufficiently spaced and failed to comply with appropriate design-safety standards. Improperly-sized or located connections increase the opportunity for accidents between cars and with pedestrians. In order to improve highway safety, the Department focused on limiting "conflict points" and providing for additional separation where possible, while providing for continued access at the existing connections. The relevant design standards applicable to the Petitioner's parcel would normally limit the width of driveways to 24 feet and require a minimum separation of 440 feet between driveways. The driveway connections between US 19 and the Petitioner's parcel exceed the appropriate width parameters. On the east side of the Petitioner's parcel, there are two separate 40-foot wide driveway connections to US 19, divided by a 25-foot wide grassy area. The Petitioner's driveway connections are substantially closer than the 440-foot minimum requirements. The northernmost connection between the parcel and US 19 is approximately 40 feet from the intersection of US 19 and Buena Vista Lane. The southernmost connection between the parcel and US 19 is approximately 105 feet from the corner of US 19 and Buena Vista Lane. The two driveways are approximately 25 feet apart. To the north side of the Petitioner's parcel, there is an 80-foot-wide connection to Buena Vista Lane, which will not be affected by the project. Although the Petitioner's parcel is not of sufficient width to allow compliance with the spacing standards, the Department has not proposed to eliminate both connections between the parcel and US 19. Similarly, the Department has not proposed to reduce the width of the remaining southernmost connection between the Petitioner's parcel and US 19. The Department has proposed only the closure of the northerly connection between the Petitioner's parcel and US 19. Continued use of the Petitioner's existing northernmost connection to the improved US 19 would present a significant conflict point for drivers entering US 19 from Buena Vista Lane and drivers intending to enter nearby Alternate US 19, with drivers turning onto or out of the Petitioner's parcel. There is an existing stop sign on Buena Vista Lane at the intersection with US 19. Persons driving east on Buena Vista Lane execute right turns at the stop sign and travel south on US 19. After the project is completed, such drivers will likely turn south into the new continuous turn lane before merging east into through lanes. The existing northernmost driveway located only 40 feet to the south of the intersection presents a conflict point for vehicles entering onto US 19 from Buena Vista Lane. A few hundred feet south of the Buena Vista Lane/US 19 intersection, US 19 connects to Alternate US 19. Drivers intending to travel west onto Alternate US 19 begin to move towards the right lane near the area of the Petitioner's parcel. After completion of the project, such drivers will likely be moving towards the new continuous turn lane, increasing the hazard presented by the Petitioner's existing northernmost driveway. The Department performed appropriate feasibility and engineering studies prior to proposing the closure of the connection at issue in this proceeding. There was no evidence presented that would suggest the studies were inaccurate or otherwise unreliable. There were multiple opportunities for public involvement during project development as well as direct contact between each impacted owner. The Department specifically notified the Petitioner of the proposal to close the northernmost connection between US 19 and the Petitioner's parcel. On more than one occasion, project representatives met with the Petitioner to discuss the proposal. The closure of the Petitioner's northernmost connection to US 19 will improve vehicular and pedestrian safety. The southernmost 40-foot driveway on US 19 and the 80- foot Buena Vista Lane connection provide reasonable access to the Petitioner's parcel. There are no practical alternatives that would improve vehicular and pedestrian safety while maintaining reasonable access to the Petitioner's parcel from US 19. The Petitioner asserted that the closure of the northerly connection will restrict access to his parcel, will significantly decrease the fair market value of the property, and will result in a loss of tenants and revenue. There was no credible evidence presented in support of the assertions, and they have been rejected. The Petitioner also asserted that flooding of Buena Vista Lane during rainstorms cause drivers to cross his property to avoid standing water. There was no evidence presented that the closure of the northernmost US 19 connection will have any impact on the referenced driver behavior or on any existing drainage issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order approving the closure of the northernmost driveway connection located at 1733 U.S. Highway 19, in Holiday, Pasco County, Florida. DONE AND ENTERED this 30th day of November, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2011. COPIES FURNISHED: Kathleen P. Toolan, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Soterios Kyriakou Kyriakou Revocable Trust Agreement 1010 Peninsula Avenue Tarpon Springs, Florida 34689 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Gerald B Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
Findings Of Fact On July 20, 1987, a DOT sign inspector observed a sign owned by Respondent alongside U.S. 19, 500 feet south of S.R. 590 which appeared to be on the DOT right-of-way of U.S. 19. Measurements of the distance of the sign from the pavement of U.S. 19 were taken. The right-of-way of U.S. 19 at this location extends 100 feet east and west of the centerline of U.S. 19 and 50 feet from the west side of the pavement. The sign was located 32 feet from the edge of the pavement on the west side of U.S. 19 some 18 feet inside the right-of-way line. The location of the DOT right-of-way is not readily determinable by a businessman desiring to erect a sign in front of his establishment. Generally, the power line poles are placed along the right-of-way line; however, this is not always an accurate method of locating the limit of the right-of-way. Here there were two lines of power line poles, and the sign was located between the pavement and the line of poles furthermost west of U.S. 19.
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
Findings Of Fact On an application received by the Respondent on September 5, 1979, the Petitioner, Community Medical Transporters, Inc. (CMT), applied for a temporary non-emergency medical transportation license. CMT indicated that it proposed covering the Broward County area and had three vehicles available. The application was denied on September 21, 1979, by Respondent for the reasons already set out above. CMT was recently incorporated in September, 1979, and has not operated a non-emergency medical transportation service in Broward County or any place else. While at present and at the time of the denial there are no medical transportation services in Broward County providing exclusively non-emergency service, there are at least four HRS licensed ambulance services which provide both emergency and non-emergency service in the area. In addition, there are several transportation services licensed by the Public Service Commission under Chapter 323, Florida Statutes, providing non-emergency service in Broward County. CMT does not hold a certificate of public convenience and necessity from the Broward County Commission. Respondent has no rules which define what statutes the public interest, safety, or convenience and the Department's witness was unable to define what the terms meant except to say that they meant holding a certificate of public convenience and necessity from the appropriate county commission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Community Medical Transporters, Inc., for a non- emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license. DONE and ENTERED this 28th day of December, 1979, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Steven Craycraft Community Medical Transporters, Inc. 5270 N.W. 15th Street Margate, Florida 33063 Harold Braynon, Esquire District X Counsel Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 =================================================================
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 Whether the Notice of Intent to Modify Driveway Connection, in which Respondent, Florida Department of Transportation (“FDOT”) seeks to close a driveway on Petitioner’s property to eliminate potential traffic issues and reduce the number of access points to the roadway, is consistent with sections 334.044(14), 335.181, and 335.182, Florida Statutes, and Florida Administrative Code Rules 14-96.011 and 14-96.015.
Findings Of Fact The Witnesses Mr. Maassen testified that John and Kathryn Maassen were his parents and are deceased.6 Although an argument could be made that Mr. Maassen was not the proper party to this case, no one raised this as an objection, and both parties actively participated in the hearing. Nicolas Leon is employed by FDOT as a roadway engineer supervisor III. He holds a bachelor’s and master’s degree in civil engineering, and is a licensed professional engineer. Mr. Leon’s duties and responsibilities include being the engineer of record and/or project manager on multiple transportation projects. He oversees a team of roadway and traffic designers, project managers, and engineers. Leanna Schaill is employed by FDOT as a traffic services access management manager for District One. She has a degree in mechanical engineering, and manages a team of four FDOT employees who review all the access management applications for driveway connection permits throughout District One. Joel B. Hobbs is employed by FDOT as an operation program engineer. He works at the FDOT maintenance office which is west of the property at issue. FDOT’s Process FDOT conducted an analysis of SR 70 in DeSoto County, Florida by evaluating the roadway, side streets, median openings, access connections, intersections, and intersections signalizations. A roadway project was formulated to bring the facility into compliance with state statutes and rules. 6 Mr. Maassen’s Exhibit N was a copy of Warranty Deed regarding “Lots 12, 13, and 14 of Block B, Fountain Park Subdivision, Arcadia Florida,” executed between Elon N. and Alesia J. Duncan to John S. and Kathryn Maassen dated April 21, 1961. FDOT is charged to use a forward-looking process to bring all state roadways into compliance with FDOT’s design standards. These design standards, set forth in FDOT’s statutes and rules, are to protect and ensure the public health, safety, and welfare for all users of the state roadway, including vehicles, pedestrians, and bicycles. FDOT is required to follow the Access Management Act found in chapter 335.18, and 14-96 and 14-97 to evaluate the roadway. Property owners who have property directly adjacent to a state roadway share a property boundary with the state roadway. Those property owners are entitled to reasonable and adequate access to their property. However, the property owner is not entitled to unregulated access to that property. See § 335.181(2), Fla. Stat. FDOT was statutorily directed to adopt rules that provide an administrative procedure for closing unpermitted connections. See § 335.182(2), Fla. Stat. As found in rules 14-96 and 14-97, an unregulated access, such as a driveway, is one that has not been permitted by FDOT, and may create safety and operational concerns because it may not be constructed or designed in compliance with FDOT’s standards. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14- 96.011(3)(a). A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). To retain the grandfather status, a driveway must be consistently used by the owner or business proprietor. If the property use is changed, that property loses the grandfathered status. When a property use changes, the owner has the ability to apply to FDOT for an access permit for the access connection. FDOT reviews those applications and may grant or deny the application. Driveway confusion and driver confusion occur when a driver “is presented with too many choices to make in a short period of time due to the inefficiency or difficult driveway location.” Such driveway confusion could cause a driver to make a wrong choice as to when, where, and how to move their vehicle within a driveway area, attempt to enter a driveway, or exit the driveway into the flow of traffic. FDOT’s Proposed Project and Property FDOT proposed a “roadway improvement project reconstruction on SR 70 in DeSoto County,” Florida. The project is approximately 1.8 miles in length beginning just east of Peace River, and heading east into Arcadia, Florida. The project includes both the eastbound and westbound lanes of SR 70, a divided roadway, sometimes called “one-way pairs.” FDOT proposed to: reconstruct the pavement through repaving the roadway; install a new closed-drainage system for storm water; install a new sanitary sewer line; create new signage; improve pavement markings; install signalization; and provide lighting improvements. Additionally, at the intersection of SR 70 and Baldwin Avenue (“Baldwin”), FDOT proposed to install a west-bound right turn lane onto North Baldwin. For the majority of the project, FDOT proposed to install eight-foot- wide ADA7 compliant sidewalks with ramps at the intersections. However, in the area where the 100-foot driveway would be closed, a six-foot-wide sidewalk with intersection ramps would be created along the curve in SR 70, based on the limited right-of-way. Ms. Schaill testified that using the “same criteria and regulation, statutes, and Administrative Code,” her team analyzed 120 driveway access connections along the proposed project corridor. Of those 120 driveway access connections, 14 were identified for modification due to safety and operational concerns. 7 The term “ADA” was understood to refer to the Americans with Disabilities Act of 1990, a civil rights law that prohibits discrimination based on disability. Five of the 14 driveway access connections were identified for closure due to safety and operational concerns. The property containing the approximate 100-foot driveway with direct access to SR 70 at issue here is a 0.43-acre parcel located at the northeast corner of Baldwin and SR 70, Arcadia, Florida. The 100-foot driveway has been in use since the 1960s. The property was a gasoline station for many years. However, in the 1990s, the property use changed from a gasoline station to a sign shop, known as DeSoto Sign (“Shop”). Petitioner’s Objection and Position Mr. Maassen objected to FDOT’s proposed closure of the Shop’s 100-foot driveway with direct access to SR 70. The Notice used the term “modification,” yet it also contained the sentence: “[T]he existing driveway will be closed, as per the attached plans.”8 Mr. Maassen’s position was that the terms: “modification” and “closure” are not the same. The Notice provided that the closure would “reduce the number of access points to the roadway and eliminate potential traffic issues.” The Notice also provided that the potential modifications would “improve safety or traffic operations on” SR 70. Mr. Maassen offered 10 “FLORIDA TRAFFIC CRASH REPORT[s]” dated May 2016 to December 2020 to support his contention that automobile crashes at or near the Shop were not the issue. He alluded that Exhibit “I,” a crash report from May 2017, provided the only instance where a bus was parked parallel to SR 70 on the 100-foot driveway. The report mentioned the parked bus as a contributing factor to a two-car accident. However, it is noted that the crash report is over four years old. 8 As indicated above, only one drawing or plan was attached to the Notice. Mr. Maassen acknowledged that a long-bed blue tractor-trailer has parked (and still parks) parallel and next to the Shop, along Baldwin. He also acknowledged at times the tractor-trailer traveling westbound on SR 70 may have maneuvered into that parking location by blocking traffic on SR 70. It is Mr. Maassen’s belief that FDOT is using that tractor-trailer as its basis for the proposed closure of the 100-foot driveway. Mr. Maassen testified that the tractor-trailer driver should be educated and/or ticketed by law enforcement to stop the parking maneuver. Mr. Maassen further testified that if the driver could not be educated as to how to drive or park appropriately, his license should be revoked. Mr. Hobbs, the only witness to actually see the tractor-trailer parking maneuver, conceded that “within the last year,” the tractor-trailer is “no longer pulling out directly onto 70. He is pulling up adjacent to the through lane and starting his maneuvers to back up into the parking position.” The tractor-trailer is now traveling south on Baldwin, pulling onto the Shop property via the Baldwin connection, and maneuvering into the parallel parking position next to the Shop. Mr. Maassen had no idea whether the 100-foot driveway, with the direct access to SR 70, was permitted at the time it was constructed or since that time. He made the point that someone would not “go out and cut a hole in a driveway for a roadway without somebody knowing about it.” Mr. Maassen acknowledged the speed limit on SR 70 in front of the Shop was 45 miles per hour. Further, Mr. Maassen pointed to section 335.184(3), and argued that when the roadway was repaved, or work done on the Shop property, “[T]here’s been no reason to make a change.” However, he did not provide any testimony as to when any re-pavement or work was done on SR 70 or on the Shop property. His position is the 100-foot driveway gives the property reasonable access for Shop customers. Mr. Maassen asserted FDOT's proposed action leaves him without "reasonable access" to the Shop property. He testified: I cannot take a delivery vehicle off a side street, make a U-turn, turn it around on that driveway and bring it back out on the side street. A vehicle of any size or nature, any of the businesses that the sign shop actually works with that has a vehicle with a trailer will be limited. There’s a canopy in the middle of that driveway which prevents you from making any type of a U- turn out there with any type of a dual vehicle. We need to have a complete access through the property from one side to the other, not just being able to pull onto one side. This is not a retail outlet. This is an operational facility where they’re doing work on vehicles out front that must be able to be brought across the driveway, not just pull on it and back out. His contention is that this action (maneuvering around the Shop property) “is reasonable access for customers.” However, maneuvering on the Shop property is considered internal circulation, and not what FDOT is charged with regulating. FDOT’s Position FDOT is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla Stat. SR 70 is a part of the Florida state highway system. The Shop’s direct connection, meaning the access, or driveway, connecting the parcel onto SR 70, runs parallel to SR 70 and is approximately 100 feet long, with a curb somewhere in the middle. The approximate length of the curb was not provided, nor was its existence challenged. This direct connection begins approximately 10 feet from the intersection of SR 70 and Baldwin. The Shop’s second connection (“second driveway”) lies on Baldwin and is approximately 75 feet long. This is an indirect connection as it connects the Shop property to Baldwin, the side street which directly connects to SR 70. The second driveway is not subject to any changes in the Notice. SR 70 is classified as a class 5 road. See Fla. Admin. Code R. 14- 97.003(1), Table 2. The class 5 designation is assigned to roadways that “are controlled access facilities where adjacent land has been extensively developed and where the probability of major land use change is not high.” See Fla. Admin. Code R. 14-97.003(2)(b)4. The rule provides that for a driveway connection on a class 5 road, which has a posted speed limit of 45 miles per hour, there must be at least 245 feet between the access connections on driveways, side streets, or adjacent properties. Ms. Schaill confirmed that at the intersection of SR 70 and Baldwin, the speed limit is 45 miles per hour. Further, she testified that the distance between the Shop’s 100-foot driveway abutting SR 70 and the Baldwin intersection is approximately 10 feet. Thus, the Shop’s 100-foot driveway is an unregulated access, in that it does not meet the spacing requirement identified in rule 14-97.003(2)(b)4. Ms. Schaill testified that this unregulated access is FDOT’s reason for closing the driveway. As provided in paragraph 9 above, “driveway connections on state roads must be permitted or grandfathered.” See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). There is no question that the gasoline station’s direct connection was in place prior to 1988. However, the use of the property changed to the Shop in the mid-1990s without an access permit application being submitted to or granted by FDOT. Ms. Schaill testified the Notice was FDOT’s second letter communicating the intent to modify the Shop’s property access. Further, FDOT staff met with Mr. Maassen or his brother at the Shop property to discuss the proposed project. Numerous telephone conversations occurred between Mr. Maassen and FDOT staff regarding the proposed project. Ms. Schaill credibly testified to the statutes and rules that FDOT must follow when projects are proposed. To paraphrase the language of section 335.181(1), she provided that the: Access Management Act is to protect all users of the state highway system, insofar as to ensure that public health, safety, and welfare of all users, which includes vehicular traffic, pedestrian traffic, and bicycle traffic on a state roadway, while also allowing for the safe and efficient mobility of people on a state roadway. Further, Ms. Schaill specified section 335.181(2) provided that “every property owner adjacent to the state roadway, shares a property boundary with the state roadway [and] is entitled to reasonable and adequate access to their parcel.” However, the property owner is not “entitled to unregulated access to that parcel.” An unregulated access to a property is one that has not been permitted by FDOT. Ms. Schaill testified that such unregulated access to a property “may create safety and operational concerns or is not constructed or designed in accordance with the Department’s standards for driveway connections.” According to Ms. Schaill, a “property owner is entitled to and has a right to the minimum number of connections required to provide safe and efficient ingress and egress to their parcel, which can be satisfied by either direct or indirect driveway connections.” In this instance, the indirect connection could be made for ingress to the Shop from Baldwin by either turning left or right onto the Shop property, and for egress by turning left out of the Shop property onto Baldwin, which connects directly to SR 70. Ms. Schaill confirmed that section 335.181(2)(a) requires FDOT to provide a property owner “adjacent to the state roadway reasonable and adequate access to the state roadway either by indirect or direct means. The access is - - - permissible access would have to be regulated by the Department, and we could not approve an unregulated access.” Ms. Schaill's testimony was clear, concise, and credible as to the statutes and rules employed by FDOT in making the determination regarding the closure of the 100-foot driveway.
Conclusions For Petitioner: David Lambert Maassen, pro se 140 South Osceola Avenue Arcadia, Florida 34266 For Respondent: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order approving the closure of the Shop’s 100-foot driveway as part of the State Road 70 project. DONE AND ENTERED this 28th day of September, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2021. COPIES FURNISHED: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 David Lambert Maassen 140 South Osceola Avenue Arcadia, Florida 34266 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450
The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 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.
