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)
Findings Of Fact Petitioner's sign was erected without the benefit of a permit from DOT and was subsequently cited for violation of the Highway Beautification Act, Chapter 479, Florida Statutes. Petitioner's application for a permit for a sign located along U.S. 19, 1000 feet south of Hiawatha Parkway in Hernando County was denied after measurements taken by a DOT sign inspector showed the sign to be within 1000 feet of a permitted sign owned by Whiteco Metro Company on the same side of U.S. 19 facing in the same direction as Petitioner's sign. A Notice of Violation was placed on the sign on November 3, 1987, directing Petitioner to remove the sign within 30 days. When Petitioner failed to take action and correct this violation, the sign was removed by Respondent.
Findings Of Fact The Petitioner owned property including structures used for his dwelling and for his business which was located within the right-of-way of an interstate highway being constructed by the Respondent, Department of Transportation. The Petitioner and the Department negotiated with respect to the amount of compensation that Petitioner was entitled to receive. The Department located a residential dwelling which it contended was comparable to Petitioner's. Petitioner accepted the dwelling located by the Department as comparable for the purpose of determining the amount of compensation that Petitioner was entitled to receive. Petitioner elected, however, to construct a new dwelling on other property that he owned. Petitioner was compensated as if he had purchased the comparable dwelling and was compensated an additional $829 for "incidental expenses" beyond the replacement value as established by the comparable dwelling. Petitioner contends that he is entitled to be compensated for the cost of a "origination fee" which resulted from Petitioner's having to arrange financing. Although improperly labeled, it appears that Petitioner did receive adequate compensation for the loan origination fee. Petitioner received a check from the Department for a "replacement housing payment" which included the origination fee which Petitioner contends he was entitled to receive. While the replacement housing payment was not broken up so as to reflect these fees, it was calculated to include them. Petitioner contends that he is entitled to receive incidental expenses beyond those that he has already received in the amount of $2,068.23. Petitioner has received a payment for incidental expenses in the amount of $829, which includes expenses for a survey, sketch and description, loan application fee, title insurance, attorney's fees, and recording fees. Petitioner actually incurred incidental expenses beyond those for which he was compensated. These additional fees resulted, however, from the fact that Petitioner elected to construct a new residence rather than to accept the comparable residence located by the Department. Because Petitioner was constructing a new residence, it was necessary for him to incur some expenses which would not have been incurred had he accepted the comparable dwelling located by the Department. These expenses included costs of obtaining a rezoning of his property, costs of various construction permits, the cost of obtaining a construction loan, and the cost of a builder's risk insurance policy. While the Petitioner actually incurred these costs, they were costs that he would not have incurred if he had elected to accept the comparable dwelling located by the Department. Petitioner did accept the comparable dwelling for the purpose of setting the amount of benefits that he was entitled to receive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Department of Transportation denying the application of the Petitioner, John D. Lawrence, for additional relocation assistance benefits. RECOMMENDED this 2nd day of August, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of August, 1982. COPIES FURNISHED: Mr. John D. Lawrence c/o Manatee Tropical Foliage Post Office Box 206 Parrish, Florida 33564 Charles G. Gardner Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Mr. Paul N. Pappas Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
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 =================================================================
Findings Of Fact 1. On or about January 18, 1988, a DOT sign inspector observed Respondent's signs 600 and 625 feet south of Candlewood Drive in Pasco County on what appeared to be the easterly right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location extends 59 feet from the easterly edge of the pavement of U.S. 19. Respondent's signs were 49 feet from the edge of the paved surface of U.S. 19. U.S. 19 is a Federal Aid Primary Highway. Respondent located his signs east of the berm along U.S. 19 which he believed to be off of the DOT right-of-way.
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On November 19, 2008, Respondent Monroe County (County) adopted an amendment to its comprehensive plan by Ordinance No. 029-2008 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not ‘in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On May 19, 2010, the County repealed the Amendment by Ordinance No. 016-2010. By virtue of this rescission, the FINAL ORDER No. DCA10-GM-121 instant controversy has been rendered moot, and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department).
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 3 of 5 FINAL ORDER No. DCA10-GM-121 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of , 2010. Paula Ford Agency Clerk By U.S. Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert B. Shillinger, Jr., Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Derek V. Howard, Esquire Monroe County Attorney’s Office Post Office Box 1026 Key West, Florida 33041-1026 Christine Hurley, AICP Growth Management Director Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 4 of 5 By Hand Delivery Richard E. Shine Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA10-GM-121
Findings Of Fact On or about January 8, 1988, a DOT sign inspector observed two of Respondent's signs along U.S. 19, 50 feet north of C.R. 95 and 300 feet north of C.R. 95 which appeared to be on the right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location is 100 feet east and west of the centerline of U.S. 19 and 50 feet east and west of the edge of the pavement of U.S. 19. Respondent's two signs were 34 feet and 38 feet, respectively, from the edge of the paved surface of U.S. 19. On or about January 13, 1988, a DOT sign inspector observed a sign owned by Respondent along U.S. 19, 50 feet north of Lake Street which appeared to be on the right-of-way of U.S. 19. The right-of-way of U.S. 19 at this location extends 55 feet from the easterly edge of the pavement of U.S. 19. A measurement taken from the edge of the pavement to Respondent's sign showed the sign to be 46 feet from the edge of the pavement. U.S. 19 is a Federal Aid Primary Highway. Respondent presented testimony that when its signs were erected they were located no closer to U.S. 19 than the power pole line which is generally located in the DOT right-of- way line.
The Issue The issue in this case is whether the proposed award by the Division of Emergency Management (DEM) of the contract referenced herein to Everbridge, Inc. (Everbridge) is contrary to DEM’s governing statutes, rules or policies, or to the solicitation specifications.
Findings Of Fact On September 1, 2015, DEM posted RFP-DEM-15-16-037 (RFP), titled ”Florida Statewide Emergency Alert and Notification System,” on the state’s Vendor Bid System (“VBS”). The purpose of the RFP is to procure a statewide emergency alert and notification system as mandated by section 252.35(2)(a)(6) Florida Statutes, which requires the DEM to “[e]stablish a system of communications and warning to ensure that the state’s population and emergency management agencies are warned of developing emergency situations and can communicate emergency response decisions.” DEM is a separate budget entity established within the Executive Office of the Governor. Tara Walters, the purchasing manager for DEM, was responsible for the RFP and the procurement process. According to the RFP, the system is to be “vendor- hosted” and capable of proving “mass notification” of “imminent or sudden hazards” through voice telephone calls, text messages, emails, social media, and “Telecommunications Device of the Deaf/TeleTYpewriter (TDD/TTY)” systems. ECN and Everbridge are vendors of mass notification systems. Section 5 of the RFP provided, in relevant part, as follows: RESPONSIVENESS Vendor. In order to qualify as a responsive vendor as that term is defined by section 287.012(27), Florida Statutes, a Proposer must submit a proposal that conforms in all material respects to this solicitation. Proposal. In order to qualify as a responsive proposal as that term is defined by section 287.012(26), Florida Statutes, a proposal must conform in all material respects to this solicitation. The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The Division shall not permit a vendor to amend a proposal after the due date for submissions – even if to correct a deviation or irregularity. * * * A proposal may fail to qualify as responsive by reasons that include, but are not limited to: Failure to include a material form or addendum; Failure to include material information; Modification of the proposal specifications; Submission of conditional proposals or incomplete proposals; and, Submission of indefinite or ambiguous proposals. Section 28 of the RFP included specific proposal format instructions. Each proposal was to contain two parts: a “Technical Proposal” (Part I) and a “Price Proposal” (Part II). The RFP explicitly identified the contents to be set forth within each part. The Technical Proposal was to include multiple sections, including a table of contents, an executive summary, and a “Management Plan.” According to the RFP, the Management Plan was required to include four elements: the vendor’s relevant experience; significant examples of the vendor’s other clients and pertinent references; a project staffing plan; and a completed “data sheet,” the form for which was included in the RFP. The RFP also required that the Technical Proposal include a section identified as “Technical Plan/Minimum System Requirements” related to the “Scope of Work” necessary to implement the system. The referenced minimum requirements were explicitly set forth at Exhibit “A” to the RFP. Finally, the RFP required that the Technical Proposal include the vendor’s financial statements for the prior three years as follows: The Proposer shall provide information regarding its financial status in order to demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis. Proposers are to include financial statements created in accordance with Generally Accepted Accounting Principles for the last three years. (Financial documentation may be combined into one file and are not included in the page count). The Division reserves the right to evaluate the financial status of any or all Proposers before making an award decision. The Price Proposal was to be submitted separately from the Technical Proposal by using the “Price Proposal Form” included in the RFP. According to the Schedule of Events set forth in the RFP, proposals were due on September 30, 2015. DEM received five proposals in response to the RFP. DEM determined that three of the proposals were not responsive, and they received no further evaluation. The two proposals that advanced into the evaluation process were those submitted by ECN and Everbridge. The RFP identified the process by which each proposal would be evaluated, including the formulas by which some scores would be calculated. Technical Proposals and Price Proposals were separately evaluated. The Technical Proposals were reviewed by a group of six evaluators, several of whom had extensive experience in emergency management and notification systems. The evaluators subjectively scored the three Management Plan elements pertaining to relative experience, examples/references, and staffing plan. Based on the evaluation, proposals could be awarded up to 30 points allocated between the referenced elements. The scores assigned by the evaluators to ECN and Everbridge for the three Management Plan elements were as follows: Evaluator ECN Everbridge Danny Hinson 13 30 Scott Nelson 30 30 Brian Misner 24 29 Phil Royce 29 27 Kevin Smith 24 25 Scott Warner 20 26 The fourth element of the Management Plan, the data sheet, was worth up to 20 points, and was scored through a formula included in the RFP. The data sheet required a vendor to identify a “guaranteed minimum number of concurrent recipient contacts” obtainable by various methods and timeframes. Using this formula, Everbridge received a data sheet score of 20 and ECN received a data sheet score of 3.99. An assertion by ECN that Everbridge cannot achieve the guaranteed minimums set forth on its data sheet was unsupported by evidence. The RFP specifically provided that the “Technical Plan/Minimum System Requirements” section of the Technical Proposal section would be evaluated on a pass/fail basis as follows: The minimum requirements of the system are broken down in to five (5) sections in the Exhibit “A”, Scope of Work, and are as follows: Minimum System Requirements, Minimum Geographical Information System Requirements, Minimum Notification Requirements, Minimum Security Requirements, and Minimum Support Requirements. Vendor’s responses shall state each requirement and detail how the system they are proposing meets or exceeds that requirement. This portion of your response is very important as proposed systems that do not meet each of the minimum requirements shall fail the Responsibility Requirements of the RFP and shall not be considered for additional review or scoring. Three of the six evaluators determined that ECN’s proposal failed to comply with all of the minimum requirements and accordingly failed to comply with the “Responsibility Requirements” of the RFP. Nonetheless, DEM completed the review and scoring of the ECN proposal. Price Proposals were reviewed and scored by Ms. Walters according to a formula specified in the RFP. Pricing was worth up to 10 points. Everbridge received a price score of 7 points. ECN received a price score of 10 points. There is no evidence that Ms. Walter’s review of the Price Proposals failed to comply with the applicable requirements of the RFP. At the conclusion of the evaluation process, Everbridge’s total score was 54.83 and ECN’s total score was 37.32. On October 19, 2015, DEM posted its Notice of Intent to Award the contract under the RFP to Everbridge. ECN filed a Notice of Protest on October 20, 2015. ECN filed a Formal Written Protest on October 30, 2015. ECN asserts that at least some of the Management Plan scoring deviated from the RFP and the instructions provided to the evaluators. ECN specifically asserts that the evaluations conducted by three of the evaluators included consideration of information extrinsic to the RFP and the vendor proposals, that the information was flawed, and that the scores awarded were therefore inappropriate. The evidence fails to establish that the evaluation of the Management Plan materially failed to comply with procedures or criteria set forth in the RFP. The evidence establishes that the individuals selected to evaluate the proposals understood the requirements of the RFP, and that they conducted their evaluations according to their understanding of the evaluation criteria at the time the evaluations were performed. The evidence further fails to establish that any alleged deficiencies in the evaluation process, even if established, would have altered the total scores sufficiently to change the intended award of the contract as set forth in the DEM Notice of Intent. ECN asserts that the Question and Answer process employed by DEM was irrational and materially impaired the competitiveness of the procurement process. Pursuant to the RFP, vendors were permitted to submit questions to DEM. On September 21, 2015, DEM posted the questions and the DEM responses, including this question submitted by ECN: If a prospective bidder utilizes third parties for completing the RFP requirements, shall the bidder’s service level agreements (SLAs) with those third parties be submitted within the proposal response? DEM’s posted response to the question was “Yes.” Everbridge did not include SLAs within its proposal. ECN asserts that DEM should have rejected the Everbridge proposal as nonresponsive because Everbridge failed to include SLAs in its proposal. ECN submitted SLAs within its proposal, although the SLAs submitted by ECN were unexecuted or incomplete. There is no requirement in the RFP that vendors submit SLAs as part of a response to the RFP. Section 15 of the RFP (titled “Oral Instructions/Changes to the Request for Proposal (Addenda)”) provided in material part as follows: No negotiations, decisions, or actions will be initiated or executed by a proposer as a result of any oral discussions with a State employee. Only those communications which are in writing from the Division will be considered as a duly authorized expression on behalf of the Division. Notices of changes (addenda) will be posted on the Florida Vendor Bid System at: http://vbs.dms.state.fl.us/vbs/main_menu. It is the responsibility of all potential proposers to monitor this site for any changing information prior to submitting your proposal. All addenda will be acknowledged by signature and subsequent submission of addenda with proposal when so stated in the addenda. DEM’s response to the question posed by ECN did not amend the RFP. DEM did not issue any notice of change or addenda to the RFP that required a vendor to include SLAs within a response to an RFP. ECN asserts that Everbridge is not a responsible vendor because Everbridge failed to comply with Section 18 of the RFP (titled “Qualifications”), which provided, in relevant, part as follows: The Division will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. * * * In accordance with sections 607.1501, 608.501, and 620.169, Florida Statutes, foreign corporations, foreign limited liability companies, and foreign limited partnerships must be authorized to do business in the State of Florida. “Foreign Corporation” means a corporation for profit incorporated under laws other than the laws of this state. Such authorization should be obtained by the proposal due date and time, but in any case, must be obtained prior to posting of the intended award of the contract. ECN, a Delaware-incorporated limited liability company, complied with the referenced requirement. Everbridge, a Delaware-incorporated corporation, did not. Although Everbridge asserts that the statutes referenced in the requirement did not require it to be registered prior to the posting of the intended award, the issue is not whether Everbridge complied with state law, but whether Everbridge met the RFP’s qualification requirements. The RFP specifically provided that in order to qualify as a responsive vendor “as that term is defined by section 287.012(27) Florida Statutes,” proposals were required to conform in all material respects to the solicitation. The RFP provided as follows: The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The issue is whether the registration requirement was “material” to the RFP. It was not. The foreign corporation registration requirement was “boiler plate” language, apparently included by DEM in the RFP with little thought. Neither Ms. Walters, nor any other DEM employee, made any effort to determine whether the vendors that submitted proposals in response to the RFP complied with the requirement. The evidence fails to establish that the failure to comply with the registration requirement constituted a material deviation from the terms of the RFP. Everbridge obtained no competitive advantage over ECN or any other vendor through noncompliance with the registration requirement. ECN asserts that the Everbridge proposal was nonresponsive to the RFP because the Everbridge proposal included the following language: Legal Disclosure Everbridge's RFP response is provided for informational purposes and is not meant to form a binding contract for the provision of our critical communications suite. Upon request, Everbridge will engage in contract negotiations to execute a service agreement tailored to appropriately capture each party's applicable rights and obligations. ECN asserts that the cited language rendered the Everbridge proposal as conditional. The RFP provided that submission of a conditional proposal could result in a proposal being deemed nonresponsive. The evidence fails to establish that Everbridge submitted a conditional proposal in response to the RFP. Section 20 of the RFP (titled “Agreement Document”) provided as follows: The Division’s “Contract” document is attached hereto and made a part hereof. The terms and conditions contained therein will become an integral part of the contract resulting from this RFP. In submitting a proposal, the proposer agrees to be legally bound by these terms and conditions. One of the three submitted proposals rejected by DEM prior to evaluation was considered to be a conditional proposal, in part because the vendor struck through portions of the RFP in its response. Unlike that vendor, Everbridge unequivocally acknowledged, on page 127 of its response, the DEM’s “instructions regarding the terms and conditions that will ultimately form the service agreement between the state and its selected vendor.” Everbridge asserts that the ECN proposal failed to comply with the requirement that the Technical Proposal include “financial statements created in accordance with Generally Accepted Accounting Principles for the last three years,” and that the failure renders the ECN proposal nonresponsive. The evidence supports the assertion. The phrase “Generally Accepted Accounting Principles” (GAAP) refers to a set of financial reporting standards and procedures adopted by the Financial Accounting Standards Board (FASB), a private organization, and adopted throughout the accounting profession. Financial statements prepared in accordance with GAAP include what are commonly identified as “notes” that disclose extensive and relevant information supporting the financial analysis reported in the statements. The financial statements submitted by ECN did not meet the requirements of the RFP. Although ECN asserted at the hearing that the financial statements it submitted were prepared in accordance with GAAP, the financial statements submitted by ECN were incomplete because they failed to contain the requisite notes. The RFP required that the financial information provided by each vendor “demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis.” The notes to ECN’s financial statements should properly have disclosed that the ECN statements contained financial information related to ECN subsidiaries, in addition to that of ECN. The absence of notes impeded determination of the reporting entity’s financial stability and resources. The Everbridge proposal fully complied with the requirement to submit financial statements prepared in accordance with GAAP and included the notes. ECN’s failure to submit financial statements meeting the RFP requirement is a material deviation from the terms of the solicitation that may not be waived because it provided a competitive advantage over other proposers who complied with the requirement. Everbridge also asserts that the ECN proposal is nonresponsive because three of the six evaluators determined that, for various reasons, ECN’s technical plan failed to meet the minimum requirements set forth in the Scope of Work. The RFP specifically provided that a failure to meet each of the minimum requirements would result in a proposal not being further reviewed or scored. Nonetheless, the ECN proposal was reviewed and scored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Emergency Management enter a final order dismissing the First Amended Formal Written Protest and Petition for Formal Administrative Hearing filed by Emergency Communications Network, LLC, and awarding the contract to Everbridge, Inc. DONE AND ENTERED this 28th day of January, 2016, 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 28th day of January, 2016.
The Issue Whether Amendment 95-2 to the Town of Jupiter Comprehensive Plan, as originally adopted by Ordinance 68-93 on October 3, 1995, and amended by Ordinance 13-96 on March 19, 1996, is “in compliance” as defined in Chapter 163, Part II, Florida Statutes (1995).
Findings Of Fact The Parties Petitioners are all political subdivisions of the State of Florida. Petitioner, Board of County Commissioners of Palm Beach County (hereinafter referred to as “Palm Beach County”), is a county located on the southeast coast of Florida. Petitioner, Martin County, is a county located adjacent to, and north of, Palm Beach County. Part of Martin County’s boundary is located adjacent to the Town of Jupiter. Petitioner, the Village of Tequesta (hereinafter referred to as “Tequesta”), is a municipality located in Palm Beach County. Tequesta’s western boundary abuts the eastern boundary of the Town of Jupiter. Respondent, the Town of Jupiter (hereinafter referred to as “Jupiter”) is a municipality located in Palm Beach County. The plan amendment at issue in this proceeding was adopted by Jupiter. Jupiter has a population of approximately 39,000 people. Respondent, the Department of Community Affairs (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of, among other things, implementing Part II, Chapter 163, Florida Statutes, the Local Comprehensive Planning and Land Development Regulation Act (hereinafter referred to as the “Act”). Intervenor, the Shores of Jupiter Homeowners’ Association, Inc., is a not-for-profit Florida corporation. Intervenor represents the interest of the Shores of Jupiter residential development. The Shores of Jupiter is located in Jupiter. The Geographic Area at Issue. The boundary of northeastern Palm Beach County which abuts the southwestern boundary of Martin County extends westerly from the Atlantic ocean for a couple of miles. The boundary then turns south for less than a mile before returning to the west. The area at issue in this proceeding consists of an area within the jurisdiction of four different local governments: Palm Beach County, Martin County, Jupiter and Tequesta. Jupiter and Tequesta are located in the northeast corner of Palm Beach County. See Palm Beach County exhibit 39. Tequesta is located in the extreme northeast corner of Palm Beach County. Part of the northern border of Tequesta abuts the southern boundary of Martin County. Jupiter is located primarily to the south of Tequesta. Most of Jupiter and Tequesta are separated by the Loxahatchee River (hereinafter referred to as the “River”). The River also has two branches separating Jupiter and Tequesta. See Palm Beach County exhibit 39. The northernmost portion of Jupiter abuts the Martin County-Palm Beach County boundary where the boundary turns to the south and then back to west. Most of the area at issue is comprised of residential subdivisions. Jupiter’s current and projected land uses are primarily residential. Land uses in Jupiter in 1995 and projected for 2000 in the Data and Analysis for the Jupiter Comprehensive Plan (hereinafter referred to as the “Plan”), suggest that residential uses and projected residential land uses of vacant land to be developed by the year 2000 will predominate in Jupiter. There is a relatively large tract of undeveloped land, referred to as “Section 28” during the formal hearing, which is not now used for residential purposes. Section 28 is located in the west, north-west portion of Jupiter. Section 28 abuts Martin County where the boundary of Palm Beach County and Martin County turn back to an east-west direction after the north-south turn. Section 28 is located to the east of Interstate 95 and the Sunshine Parkway, west of the River, north of Indiantown Road and south of the Martin County line. Existing Transportation Corridors. The roads that are at issue in this proceeding are depicted on Palm Beach County exhibit 1. The road identified in red as Roosevelt Street is conceptual only. The depicted connection of Island Way and Northfork Drive is also conceptual. To the western boundary of Jupiter and the area at issue in this proceeding is located Interstate 95 and the Sunshine Parkway. Both roads begin a turn from a northerly direction to the northwest. The main corridor along the eastern portion of Jupiter located to the west of the North Fork of the River is Loxahatchee River Road. Loxahatchee River Road runs to the north from the intersection with Center Street and then follows the northwestern route of the North Fork of the River to the boundary of Martin County. The road continues into Martin County and connects with Island Way. Loxahatchee River Road functions as a county collector road. This means that it carries a high volume of traffic and is intended to connect and lead traffic from one set of local street connections to another. Loxahatchee River Road is bordered by unincorporated subdivisions, including Whispering Trails, Imperial Woods, Fox Run and Eagle’s Nest. Loxahatchee River Road is a two-lane road. It has been used for a number of years as a traffic corridor between Palm Beach and Martin Counties. It is poorly designed for this purpose. Its design pre-dates contemporary transportation planning. Houses face onto the road and have direct driveway access to the road. These houses are not protected from the road by a buffer. To the west of Loxahatchee River Road and to the east of I-95, the main north-south road corridor is made up of Longshore Drive and Northfork Drive (hereinafter referred to as the “Northfork/Longshore Corridor”). The Northfork/Longshore Corridor is a two-lane road. Longshore Drive runs in a generally northern direction from Central Boulevard until it connects with Northfork Drive. Northfork Drive continues in a generally northern direction. It parallels a portion of the boundary of Martin and Palm Beach Counties which runs north-south. The Northfork/Longshore Corridor is bordered by residential subdivisions, including the Shores of Jupiter, Northfork, The Preserve and Cypress Cove. All of these subdivisions were annexed by Jupiter in March, 1993. Northfork Drive was designed to accommodate a thoroughfare. Residents are buffered from the road and face away from it. Traffic from residents along Northfork Drive is directed to limited access roads to Northfork Drive. Northfork Drive terminates about a quarter of a mile south of the portion of the boundary of Martin and Palm Beach Counties that runs east to the Atlantic Ocean and where the boundary turns to the south. Approximately a quarter of a mile north of the termination point of Northfork Drive is the southern termination point of Island Way. Island Way is located in Martin County. An unpaved right-of-way separates the southern terminus of Island Way and the northern terminus of the Northfork/Longshore Corridor. In the south, the main east-west corridor is Indiantown Road and Center Street. Indiantown Road is a primary commercial area for residents of the area at issue. Residents in the area use the Northfork/Longshore Corridor and Loxahatchee River Road to access these commercial areas. The road system of the area at issue is dominated by the River and its tributaries. The River creates a physical barrier to travel by the residents of the area. Due to this barrier, Central Boulevard, Church Street and Roebuck Road, which all connect with the Northfork/Longshore Corridor and Loxahactchee River Road, provide the primary routes for residents of the area to access Indiantown Road. Transportation Planning for the Area. A number of factors have caused difficulties in planning for the traffic needs of the area at issue in this proceeding. The area is constricted by the River, the area is under the jurisdiction of four local governments, all of which are involved in this proceeding, and the north-south jog in the boundary of Palm Beach and Martin Counties has the potential to create greater traffic impacts between the two counties. The fact that the area is primarily residential and largely existing development also contributes to the problem. Most motor vehicle trips generated in the area involve travel to and from residents in the area to destinations outside the area. The fact that the development already exists makes it difficult to establish a comprehensive internal grid street system with a continuous and unfragmented regional road network. Future planned developed will only add to this problem. The projected development of Section 28 could significantly add to the traffic problems of the area. Section 28 is bounded on the west by I-95 and the turnpike. Traffic generated in the area will have to travel north into Martin County or south and east through Jupiter. Roads required for travel into Martin County from Section 28 do not exist. Prior to 1993 the Northfork/Longshore Corridor was located in unincorporated Palm Beach County. In 1986 Palm Beach County undertook a transportation study for northern Palm Beach County. Public meetings were conducted and studies were undertaken to evaluate roadway corridors for the area necessary to accommodate existing and future traffic. The evaluation included a consideration of the needs of traffic moving between Palm Beach and Martin Counties. As a result of Palm Beach County’s study, it was ultimately concluded that three intercounty thoroughfares were needed for the area: (a) Loxahatchee River Road; (b) Longshore Drive(connected to Northfork Drive, connected to Island Way); and (c) a new corridor, the “Western Corridor”. Loxahatchee River Road and the Northfork/Longshore Corridor were added to the Palm Beach County Thoroughfare Identification Map. Loxahatchee River Road was already being utilized as an intercounty traffic corridor despite design limitations for such use. Hearings were conducted by Palm Beach County in November, 1987, at which the use of Longshore Drive was considered as a possible second corridor. The Jupiter transportation planner at the time presented a report comparing possible thoroughfare alignments, including the suggestion that Longshore Drive be connected to a thoroughfare to be constructed through the area where Northfork Drive was ultimately constructed and that the thoroughfare be connected with Island Way. Palm Beach County accepted this suggestion. The Western Corridor, if constructed, would run through Section 28 and probably connect Indiantown Road with Island Way. The exact route for such a corridor has not been decided. Nor has right-of-way for the corridor be acquired or funding for the corridor been set aside. The Loxahatchee River Road and the Northfork/Longshore Corridor were added to Palm Beach County’s Thoroughfare Right-of- Way Identification Map (hereinafter referred to as the “TIM”). Although the TIM is not used to identify capital improvements, it is used by Palm Beach County in the Traffic Circulation Element of Palm Beach County’s comprehensive plan as a land use planning tool. Annexation of the Shores of Jupiter. Palm Beach County suggested in 1989 that the various municipalities in the county should look at areas which could be annexed into the municipality while promoting the efficient delivery of urban services. Jupiter looked at unincorporated areas surrounding it as possible areas to annex, consistent with Palm Beach County’s suggestion. Jupiter looked at areas which might be annexed also in order to comply with its own Plan, which was adopted in 1990. As part of its consideration of areas which it considered desirable to annex, Jupiter routinely sent letters to communities explaining the benefits of annexation by Jupiter. Jupiter also addressed concerns expressed about annexation by businesses and residents of areas it was considering. Since 1990, Jupiter annexed approximately 50 different properties. Among the areas considered for annexation by Jupiter were subdivisions located along Northfork Drive, including the Shores of Jupiter. Discussions between Intervenor and Jupiter about annexation of the Shores of Jupiter began in 1992. Intervenor made it clear to Jupiter that it would consider supporting annexation only in Jupiter supported its efforts to avoid the connection of the Northfork/Longshore Corridor to Island Way. Counsel for Jupiter informed the then Town Manager of Intervenor’s position in a memorandum dated July 23, 1992: The Shores does not want a through road or “T” intersection at the northern boundary of the Northfork subdivision . . ., which allows Longshore Drive to be extended into Martin County. The Shores is intractable on this issue. Anything less than the Town’s vigorous support of the Shores in this regard will doom the annexation unless the Town supports to the fullest extent the prevention of Longshore Drive’s extension into Martin County. Consequently, if there is to be another corridor in northern Palm Beach County, The Shores would only support the “western corridor.” . . . See Palm Beach County exhibit 28. As a solution to Intervenor’s concerns, Jupiter’s attorney suggested the following solution: The proper vehicle for the Town to address the concerns of The Shores is through the Town’s comprehensive plan. Of course, the Town’s comprehensive plan can only be applied to The Shores, Northfork, Shorewood and Cypress Cove subdivisions and the Longshore Drive corridor, if these areas are within the municipal jurisdiction of the Town. Nevertheless, the Town Council can publicly describe its intention to adopt appropriate goals, objectives and policies it proposes to adopt as part of amendments to its comprehensive plan to address the concerns of The Shores. It may also be appropriate for the Town to address corridor planning issues, in particular, appropriate alignments, if any, of a “western corridor” in the Transportation Element Plan. Finally, the Town should consider including the alignment of a “western corridor” as part of its western interchange planning study. In a letter dated February 16, 1993, the Mayor of Jupiter, the Honorable Karen J. Golonka, informed residents of the Shores of Jupiter of a special referendum election on the issue of annexation of the Shores of Jupiter into Jupiter. Mayor Golonka suggested that residents vote “Yes” on the referendum and gave the “top three reasons” why Jupiter believed annexation would be in the best interest of residents of the Shores of Jupiter. In addition to the improved law enforcement protection and the protection of property values, Mayor Golonka informed residents that, while members of the Palm Beach County commission were supporting the connection of the Northfork/Longshore Corridor to Island Way, Jupiter was opposed to the connection. Mayor Golonka indicated that Jupiter had adopted Resolution 47-92 expressing the following: the Town’s opposition to making Longshore Drive a major arterial, and the Town’s intention, if the annexation is successful, is to amend our Comprehensive Plan to ensure that Longshore Drive remains the treelined collector street seen today. Palm Beach County exhibit 7. Resolution 47-92 had been adopted by Jupiter in September of 1992 because Intervenor had asked Jupiter to take a formal position on the question of the Northfork/Longshore Corridor connection with Island Way. In March, 1993, a dual referendum was conducted concerning the annexation of certain areas, including the Shores of Jupiter. The Shores of Jupiter was subsequently annexed by Jupiter. While the position taken by Jupiter with the Intervenor prior to the adoption of the amendment at issue in this proceeding does not conclusively prove that the amendment is not “in compliance” with the Act due to the lack of adequate data and analysis to support the amendment, the evidence did prove that Jupiter had already decided to take a position similar to the position established in the amendment without determining whether adequate data and analysis for that position existed. The Challenged Amendment Adopted Through Ordinance 68-93. Subsequent to the annexation of the Shores of Jupiter, Jupiter proposed an amendment to its Plan which included, among other things, a proposed Policy 1.4.4 providing, in part, that “[t]he Town will discourage any connections of Northfork Drive to Island Way or any other road or roadway corridor located in Martin County.” The plan amendment proposed by Jupiter (hereinafter referred to as the “Original Plan Amendment”) was not transmitted to the Department until September of 1994. Following its review of the Original Plan Amendment in October, 1994, the Department issued its Objections, Recommendations and Comment Report (hereinafter referred to as the “First ORC”). The Department raised several objections to the Original Plan Amendment. Among other things, the Department objected on the basis of the lack of supporting data and analysis, lack of specificity of the proposed policies, lack of intergovernmental coordination and the creation of internal inconsistencies in Jupiter’s Plan. Jupiter responded to the First ORC on October 9, 1995. In response to the objections raised by the Department with regard to Policy 1.4.4, Jupiter responded that it intended to change the policy to provide that the policy to discourage the connection of Northfork Drive would only apply in the absence of a “demonstrated need “for the connection. See Palm Beach County exhibit 33. Jupiter also informed the Department that the data and analysis that supported Policy 1.4.4 consisted of a 1994 traffic planning study, the Joint Local Government Traffic Engineering Study (hereinafter referred to as the “Joint Traffic Study”), and Jupiter’s analysis of the Joint Traffic Study. While Jupiter suggested that it relied upon other “data and analysis”, the response to the Department’s First ORC only indicates that Jupiter relied upon the Joint Traffic Study. On October 3, 1995, following a public hearing, Jupiter adopted Ordinance 68-93 and the Original Plan Amendment therein. On December 1, 1995, the Department issued a Notice of Intent to Find Not in Compliance Jupiter’s Original Plan Amendment. A Statement of Intent describing numerous inconsistencies found by the Department between the Original Plan Amendment and the Act was entered with the notice. Petition for Formal Hearing, Settlement Negotiations and Adoption of the Remedial Amendment. On or about December 6, 1995, a petition challenging Jupiter’s Original Plan Amendment was filed by the Department with the Division of Administrative Hearings. The matter was designated case number 95-5930GM and was assigned to the undersigned. Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., were allowed to intervene in case number 95- 5930GM by Order entered January 8, 1996. Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996. The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department, Jupiter and the Shores of Jupiter ultimately reached a stipulated settlement. Palm Beach County and Tequesta did not, however, enter into the settlement. Upon the filing of the Stipulated Settlement Agreement, the abeyance of case number 95-5930GM was extended. Pursuant to the Stipulated Settlement Agreement, Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find Amendment 95-2 (hereinafter referred to as the “Remedial Amendment”), in compliance to be published. On or about May 2, 1996, Martin County filed a petition in response to the April 20, 1996 Notice of Intent to find the Remedial Amendment in compliance. The Petition was filed with the Division of Administrative Hearing on May 23, 1996. Martin County’s petition was designated case number 96-2563GM. Palm Beach County and Tequesta filed amended petitions in response to the Remedial Amendment. The amended petitions were accepted by Order entered June 5, 1996. By Order dated July 9, 1996, the parties in case number 95-5930GM were realigned, the two cases were consolidated, the stay was lifted and Martin County was allowed to intervene in case number 95-5930GM. The Remedial Amendment. The Remedial Amendment adopted by Jupiter and found in compliance by the Department includes an addition to the Traffic Circulation Element of Jupiter’s Plan. The Remedial Amendment adds Goal 4, Objective 4.1 and eight policies to implement the Goal and Objective to the Traffic Circulation Element of the Plan. The Remedial Amendment adopted by Jupiter provides the following, with modifications to the Original Plan Amendment noted: Neighborhood Protection The Town of Jupiter recognizes the need for a traffic circulation system that serves the needs of its residents, provides roadways with the least amount of congestion, promotes business and economic development of the community, and protects existing and proposed residential neighborhoods. The construction of new roads or expansion of existing roads should be accomplished in a manner that minimizes any impacts on the Town’s residential neighborhoods. The Town can minimize the impacts of road construction or expansion through such means as : diverting the flow of through traffic away from streets that serve existing neighborhoods, discouraging future thoroughfare or traffic circulation plans which encourage nonresidential or non- resident use of neighborhood streets, requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan, and coordinating/cooperating with all appropriate governmental agencies to ensure new or expanded roadways will not adversely affect the Town’s residential areas. With respect to intergovernmental coordination/cooperation, the Town should work closely with both Palm Beach County and Martin County adjacent local governments and any other appropriate governmental entities to ensure that future transportation planning, roadway construction, and development approvals are supportive of efforts to protect and enhance existing and proposed residential neighborhoods. GOAL 4: To accommodate a variety of regional, intercounty, intracounty, and local travel demands in ways that minimize traffic congestion; encourage pedestrians; reduce the overall amount of travel for daily goods and services; and protect the integrity of existing neighborhoods. Objective 4.1: The Town of Jupiter will continue to study and evaluate whether or not an additional intercounty or intracounty transportation corridor for the area west of Loxahatchee River Road, east of I-95, and north of Indiantown Road is desired or needed in this geographic area; and assuming such a corridor is necessary, shall coordinate/cooperate with adjacent local governments and any other appropriate and governmental entities to identify the appropriate thoroughfare route of that corridor. Policy 4.1.1 The Town of Jupiter, in coordination/cooperation with Palm Beach County, Martin County, the Village of Tequesta, the Metropolitan Planning Organization, and other appropriate governmental agencies, shall encourage and participate in long range transportation planning efforts that protect existing or proposed residential neighborhoods by locating new or expanded roadways in a manner that does not adversely affect such neighborhoods. Policy 4.1.2 The Town of Jupiter, to the extent possible, shall encourage the construction of new roads and the expansion of existing roads in a manner that protects existing or proposed residential neighborhoods by diverting or eliminating the flow of non-resident or through traffic, and requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan. Policy 4.1.3 The Town Shall rReview planning and other data generated by the Town’s western interchange study and other appropriate sources to determine whether or not the County’s western corridor should be aligned with Island Way or other right-of- way in Martin County west of The Shores. Policy 4.1.4 The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. Policy 4.1.5 In the event an additional intercounty or intracounty roadway serving Palm Beach County and Martin County via Island Way or other right-of- way is necessary, this corridor’s route shall be aligned to a north-south route west of the present Jupiter Community Park. Policy 4.1.6 If an additional intercounty or intracounty corridor is constructed, the Town shall coordinate/cooperate with adjacent local governments to not align the corridor so as to not adversely impact existing residential neighborhoods. Policy 4.1.7 The Town shall coordinate/cooperate with Palm Beach County, Martin County, the Village of Tequesta, and any other affected governmental agencies to establish an overall vehicular circulation plan, including any additional north-south transportation corridors needed to alleviate existing or anticipated traffic congestion. Policy 4.1.8 The Town shall coordinate/cooperate with Martin County, Palm Beach County, the Village of Tequesta, and any other affected governmental agencies to discourage the creation of intercounty or intracounty traffic circulation patterns that provide ingress and egress to residential or nonresidential developments in Martin County solely through the Town of Jupiter and Palm Beach County. [Additions indicated by underlined words and eliminated words struck through]. Pursuant to the Remedial Amendment, Jupiter essentially modified the Original Plan Amendment, found to be not in compliance by the Department, by: Changing the term “cooperate” to “coordinate/cooperate”; Indicating that Jupiter will involve “adjacent local governments and any other appropriate governmental entities” in its efforts; and Modifying Policy 4.1.4 (formerly numbered Policy 1.4.4) as follows: The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified with respect to based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods. Coordination/cooperation may include mediation. [Additions indicated by underlined words and eliminated words struck through]. The Adequacy of Data and Analysis. The data and analysis submitted by Jupiter in support of the Original Plan Amendment and found to be inadequate by the Department consisted of the Joint Traffic Study and Jupiter’s analysis thereof. No additional data and analysis has been provided by Jupiter. The Department, while disagreeing with Jupiter and Intervenor as to the relevancy and adequacy of the Joint Traffic Study, suggested at hearing that the Remedial Amendment is supported by data contained in the Plan. In particular, the Land Use Intergovernmental Coordination and Traffic Circulation Elements. The stated purpose of the Joint Traffic Study was to: . . . determine existing traffic patterns crossing the Martin/Palm Beach Count Line in the vicinity of Jupiter and Tequesta for todays travel and to make a reasonable projection of probable future traffic patterns when the area reaches build-out that the engineering professionals of the affected jurisdictions could agree upon. Elected officials would then be able to look at regional roadway issues and needs required to meet the projected levels of traffic. Joint Exhibit 7 The Joint Traffic Study was a collaborative effort of the local governments involved in these proceedings. In order to understand whether the Joint Traffic Study provides data and analysis which can be relied upon to support the Remedial Amendment, it must be understood what portion of the Remedial Amendment is at issue. The Remedial Amendment reflects several policy choices of Jupiter. For example, the Remedial Amendment reflects the policy of Jupiter of protecting the character of its neighborhoods. See, e.g., Objective 4.1. The data of the Plan is sufficient to support this broad, general policy. Policy 4.1.4 of the Remedial Amendment also reflects a policy choice of Jupiter that the connection of Northfork Drive and Island Way, or any similar connection, should be discouraged. This policy choice reflects a conclusion that such a connection is not necessary or, if necessary, the detriments to the surrounding neighborhoods of the Northfork/Longshore Corridor will outweigh the need for the connection. Neither the Plan nor the Joint Traffic Study support these conclusions. Policy 4.1.5 and 4.1.8 also go beyond establishing a general policy of protecting neighborhoods. Policy 4.1.5 reflects a policy of Jupiter that if there is a need to connect Island Way with a corridor in Palm Beach County it should be accomplished through construction of a Western Corridor. Policy 4.1.8 reflects a policy that no ingress and egress should be allowed through any neighborhood in Jupiter. While a general policy of protecting neighborhoods may be supported by the Plan, the application of Policies 4.1.4, 4.1.5 and 4.1.8 requires more than a mere assumption that the connection of Northfork Drive to Island Way will result in detriments that outweigh any benefits of the connection, that the Western Corridor is THE method of connection between Martin and County and Palm Beach County which should be pursued, and that under no circumstances should ingress and egress be allowed through any neighborhood. Such conclusions require more. Jupiter has recognized that plan provisions which control land use and development activities and those addressing specified minimum criterion of the law must be supported by the highest level of data and analysis. Jupiter suggests, however, that the Remedial Amendment is merely an “aspirational provision, one which projects more subjective community-desired-outcomes and is not intended to satisfy one of the mandated minimum criteria areas”. Jupiter argues, therefore, that the Remedial Amendment “demands a less rigorous foundation in data and analysis.” While Jupiter may be correct that the policy choice of the Remedial Amendment concerning general neighborhood protection is aspirational, it is not correct as to the other policy choices concerning the need for the connection of Northfork Drive and Island Way, the need for the Western Corridor or the need to prevent all ingress and egress road in Jupiter. Those policy choices directly reflect land use and development activities as they relate to transportation. Simply assuming that the connection of Northfork Drive and Island Way and that ANY road providing ingress and egress through a Jupiter neighborhood will be harmful to the neighborhoods that border the Northfork/Longshore Corridor ignores the possibility that the connection could be beneficial to other areas of Jupiter due to reductions in traffic in those areas. It also ignores the possibility that steps can be taken to minimize any detrimental impacts. It also ignores the possibility that there may be an insignificant increase in traffic as a result of the connection and/or that the impacts of any increase in traffic may be eliminated through design modifications of the Corridor. Likewise, Jupiter’s assumption that the only way of resolving the need for north-south connector roads between Martin and Palm Beach Counties or within north Palm Beach County should only be accomplished by a Western Corridor ignores other solutions that will better serve the residents of the areas involved. Jupiter’s assumption or intuition also fails to take into account the impact of its policy choices on other governments. For example, the impact on the residents surrounding Church Street if the connection is not made is reflected in the Joint Traffic Study. Jupiter’s assumption allows it to ignore this possible impact. The Joint Traffic Study is deficient for a number of reasons. First, the Joint Traffic Study does not reflect current conditions in the area studied. At the time the Original Plan Amendment was submitted, Jupiter also submitted a land use change for a 183 acre tract of land known as the Weiser Tract. The submittal reflected a change of 158 acres from industrial use to residential use. The Joint Traffic Study had been prepared a year and a half prior to this proposed change and, therefore, does not take this significant modification into account. The modification of the land use of the Weiser Tract could have a significant impact on traffic and, therefore, the conclusions and information contained in the Joint Traffic Study. Because of the land use modification not reflected in the Joint Traffic Study, the Joint Traffic Study cannot be said to constitute the best available data to support the Remedial Amendment. The Joint Traffic Study purports to project or forecast traffic volumes in the area as a result of the build-out of land uses reflected in the comprehensive plans of the local governments involved in the study. In fact, however, the data gathered for the study was data on development and zoning, not projected plan build-out. The evidence failed to prove that development and zoning reflects projected plan build-out. Therefore, it cannot be concluded that the data contained in the Joint Traffic Study was collected and applied in a professionally acceptable manner. The methodology utilized for the Joint Traffic Study also does not support its use as data and analysis to support Jupiter’s policy choice concerning the connection of Northfork Drive and Island Way. The Joint Traffic Study was not intended to provide a formal transportation analysis of alternatives from which one of the local governments involved would elect one alternative. While the Joint Traffic Study may utilize a methodology used by traffic planning engineers on an everyday basis, the evidence failed to prove that traffic planning engineers would use it for the purpose that Jupiter has used it. For Jupiter to rely on the Joint Traffic Study to conclude that the connection of Northfork Drive and Island Way is not necessary and that the policies reflected in Policies 4.1.5 and 4.1.8 are necessary, it would be necessary for the Joint Traffic Study to include an alternative analysis or the data to perform such an analysis. It does not. Such an analysis should compare construction costs and environmental impacts of alternative traffic alignments. Such a study should also include short and long-range projections for traffic conditions, land use data, level-of-service standards and functional classifications for area roads, or existing level-of- service standards. Jupiter’s analysis of the Joint Traffic Study is also inadequate. The Joint Traffic Study discusses four different scenarios. Jupiter, however, elected to only utilize two of those scenarios. As to the existing Plan, the portions of the Plan relied upon by Jupiter and the Department, while recognizing the importance of the coordination of issues related to roads and traffic safety, do not support the specific objective of the Remedial Amendment to discourage the connection of specific roads, the location of the Western Corridor or the prevention of roads of ingress and egress in Jupiter. Nor do the provisions of Plan which provide an inventory of pertinent agencies and provide that the agencies should be contacted and worked with on common problems. While data and analysis support the other provisions of the Remedial Amendment, data and analysis does not support Policies 4.1.4, 4.1.5 and 4.1.8. Conditional Policy or Self-Amending Policy. Policy 4.1.4 provides that the general policy of Jupiter is (in cooperation/coordination with other agencies) to discourage the connection of Northfork Drive and Island Way UNLESS there is a “demonstrated need” for the connection. It has been suggested by Petitioners that this provision creates a self- amending policy--a policy that may change without the need to follow the amendment procedures required in the Act. In support of this position Petitioners have argued that if demonstrated need is found by Jupiter to have been shown, the policy to discourage automatically ceases to be the policy of Jupiter even though the amendment process of the Act has not been fulfilled--that the policy of discouragement becomes “inoperative”. A self-amending policy is one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted. Typically, a self-amending policy is one that provides that certain things will occur if some other event, such as the amendment of a law by another jurisdiction, takes place. For example, if the policy is “X” unless law “Z” is modified, then the policy will be whatever law “Z” requires even though law “Z” may be amended in the future. Because it cannot be known how law “Z” may be amended in the future, policy “X’s” reliance on law “Z” is self-amending.. Obviously, that is not the type of policy at issue in this proceedings. A conditional policy, which Jupiter suggests Policy contains, is one which may change if certain clear contingencies or alternatives, described at the time of adoption of the Policy, are provided. For example, a policy that allows a general residential density but provides that, if land is to be used for affordable housing, a different density will be allowed, is an example of a conditional policy. The policy at issue in this proceeding is not a self- amending policy. It sets out a clear general policy: to discourage the connection of Northfork Drive and Island Way. And it sets out specific conditions for changing that policy: the showing of demonstrated need, which is further defined by the policy. The evidence failed to prove that Policy 4.1.4 is a self-amending policy. Unbridled Discretion? Petitioners have suggested that Policy 4.1.4, in particular, the portion of the Policy providing for the determination of whether there is a “demonstrated need” for a connection of Northfork Drive and Island Way, vests unbridled discretion in Jupiter. In support of this position, Petitioners have pointed to the failure of Policy 4.1.4 to specify the following: a) the specific office or person that will make the determination; and (b) the specific time(s) when the determination will be made. Petitioners have also argued that the Policy fails to specify sufficient objective criteria to be considered in determining whether there has been a showing of demonstrated need and argue that Jupiter is not capable of performing the balancing of need against its policy to protect its neighborhoods. As to the lack of specificity as to which office or person will perform the needs analysis, a reading of the Plan, with the Remedial Amendment, makes it clear that the ultimate responsibility rests with Jupiter and its governing body. Whether the alleged need is raised from within or without Jupiter need not be specified. The Act does not require more than that Jupiter be ultimately responsible. As to when the analysis will or may be performed, the lack of specificity would not be fatal in and of itself if the policy to discourage were supported by data and analysis. If the general policy to discourage the connection were supported by data and analysis, then the needs analysis could be performed at any time. Having failed to provide data and analysis to support the general policy, the lack of specificity as to when an initial determination of need will take place is contrary to the Act. The evidence also failed to prove that the definition of “demonstrated need” is inadequate. The “demonstrated needs” analysis specified by the Policy is similar to the type of analysis that would be required for Jupiter to make the policy choices concerning the lack of need for the connection of Northfork Drive and Island Way. Had it performed such an analysis before adopting the Remedial Amendment, there might have been sufficient data and analysis to support its policy choices. Finally, the question of whether Jupiter is capable of carrying out the balancing of demonstrated need and its neighborhood protection policy involves the application of the Policy. This is not an issue of whether the language of the Policy is “in compliance” with the Act. The Use of the Term “Discourage”. Evidence was presented by Petitioners to suggest that the term “discourage” as used in Policy 4.1.4 is vague and, therefore, violative of the Act. The term “discourage” is not a technical term. Therefore, it should be given its plain ordinary dictionary meaning. Whether the term, as defined in its ordinary sense, is so vague as to be violative of the Act must be determined in the context of the policy in which it is used. In this matter, the lack of specificity as to what specific actions Jupiter will take to “discourage” the connection of Northfork Drive and Island Way does not render Policy 4.1.4 so vague as to be violative of the Act. What is violative of the Act is the policy choice of Jupiter to “discourage” the connection without first adequately considering whether this particular connection should be discouraged. Inconsistency with Palm Beach County’s Thoroughfare Identification Map. Palm Beach County’s charter gives it control over the levels of service allowable on certain collector and arterial roads within the county, even if they are within the boundary of municipalities. This provision allows Palm Beach County to comprehensively plan a countywide transportation network. Palm Beach County’s responsibility for a comprehensive countywide transportation network is reflected in its comprehensive plan. In particular the plan includes a concurrency management system and a thoroughfare identification map (hereinafter referred to as the “TIM”). The TIM reflects the collector and arterial roads over which Palm Beach County exercises transportation authority. The purpose of the TIM is to identify right-of-way required to carry out Palm Beach County’s provision of a countywide transportation network. The TIM has reflected the connection of Northfork Drive and Island Way as part of the countywide transportation network since 1989. Jupiter suggests that the use of the word “discourage” rather than the more absolute language contained in the Original Plan Amendment, eliminates any inconsistency with the TIM. Jupiter has also suggested that all the TIM does is identify right-of-way and the Remedial Amendment does nothing to eliminate that right-of-way. Jupiter’s position concerning the TIM is rejected. The use of the term “discourage” does not eliminate the fact that Jupiter is taking the position in its Plan that Northfork Drive and Island Way should not be connected. Until demonstrated otherwise, this is the stated policy of Jupiter. The TIM on the other hand reflects a decision of Palm Beach County that the connection may be necessary for the benefit of the countywide transportation network. The narrow view of the purpose of the TIM, that it only is intended to protect right-of-way, ignores the broader purpose for which right-of-way is being protected: to insure that Palm Beach County can carry out its countywide transportation network plans. Policy 4.1.4 is inconsistent with that purpose. Impact of the Remedial Amendment on Petitioners. The Petitioners are all local governments that adjoin Jupiter. Palm Beach County has responsibility in the area at issue to insure that the road system in Palm Beach County is in place to accommodate growth as it occurs, to have an appropriately planned system that will handle growth and to maintain the system once it is in place. The Remedial Amendment eliminates one of the possible corridors which Palm Beach County has identified as necessary to carry out its responsibility. It also specifies the location of the Western Corridor as a means of solving north-south corridor needs and eliminates alternatives involving ingress and egress to Jupiter. The use of the Northfork/Longshore Corridor connected to Island Way could be accomplished at a cost of approximately $200,000.00 plus the cost of acquiring the right-of-way. The cost of constructing the Western Corridor, which has been suggested as an alternative to the connection with Island Way of Northfork Drive would be 6 to 7 million dollars. There would be other costs that may be incurred to raise the levels of service on other roads if Northfork Drive is connected with Island Way. The impact of the Remedial Amendment on Palm Beach County could result in delays in its ability to meet its responsibility to meet the needs for improvements in the road system of the area due to increased growth. The Remedial Amendment could also eliminate consideration of the connection and cause the need to pursue more costly alternative road corridors necessary to meet growth in the area. The Remedial Amendment could have the same impact on Martin County and Tequesta. Without the connection the area involved will have an additional traffic burden what will fall on the roads of Martin County, Palm Beach County and Tequesta, requiring the improvement of facilities in those jurisdiction. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The road system of the area will have to be improved to meet that increased traffic. The Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased traffic be handled by infrastructure which will have to be provided by one or more of the Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding Policies 4.1.4, 4.1.5 and 4.1.8 not in compliance with the Act. DONE AND ENTERED this 24th day January, 1997, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1997. COPIES FURNISHED: Paul R. Bradshaw, Esquire Bryant, Miller & Olive 201 South Monroe Street Tallahassee, Florida 32301 Barbara Alterman Assistant County Attorney Palm Beach County Attorney’s Office Post Office Box 1989 West Palm Beach, Florida 33402 Scott G. Hawkins, Esquire Post Office Box 3475 West Palm Beach, Florida 33402 Gary K. Oldehoff Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, Florida 33408 Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas J. Baird, Esquire 11891 U. S. Highway 1 North Palm Beach, Florida 33408 Thomas G. Pelham, Esquire David Russ, Esquire APGAR & PELHAM 909 East Park Avenue Tallahassee, Florida 32301 Bob Bradley Executive Office of the Governor Administration Commission 1601 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning Administration Commission 2105 The Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 The Capitol Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether the Department of Transportation (DOT) acted correctly in deeming the bid of Petitioner White Construction Co., Inc. (White), to be nonresponsive for failure to meet the Disadvantaged Business Enterprise (DBE) goal for Project No. 220517-1-52-01 (the project) and whether the proposed award to Intervenor Mitchell Brothers, Inc. (Mitchell) is in accordance with governing rules and statutes or is arbitrary, capricious, or contrary to competition.
Findings Of Fact The project is for work in Wakulla County. The deadline for submission of bids was June 17, 1998. White and Mitchell bid on the Project. Upon the opening of the bids on or about June 17, 1998, White was the apparent low bidder at $4,140,400.14, and Mitchell was the apparent second low bidder at $5,237,848.89. Pursuant to Rule 14-78, Florida Administrative Code, bidders have three days after bid opening in which to submit detailed information regarding compliance with the project’s DBE requirements. The requirements of this project were that eight percent of the contract work be performed by DBEs. With the bid itself, a bidder only needs to submit a DBE summary, noting whether it will meet the DOT established goal of eight percent. Within the three day period, White submitted DBE utilization forms, one of which listed HSD as one of its DBEs, for work in the amount of $55,326.36. Mitchell submitted the required forms, showing compliance with the DBE goals. The DOT publishes a DBE directory for each bidding cycle. The directory indicates the bidding cycle to which it is to be applied. If a company is not listed in the directory, a contractor is on notice that such company is not a certified DBE. White is an experienced bidder and contractor with the Department of Transportation. The bid and the DBE submission in this case were prepared by a White estimator who had been an estimator for many years. White’s estimator admitted that, while he usually reviewed the DBE directory prior to submission of bids, he failed to do so in this case. White received a copy of the DBE directory for the June Letting, but did not consult it to confirm that HSD was listed. While White has substituted DBE subcontractors on jobs after performance has begun where the DBE cannot complete the work for which it was hired, White has never substituted a DBE subcontractor prior to the performance of the contract or changed subcontractors on its bid after the bid opening because a subcontractor it listed for purposes of meeting the DBE goal was not DBE certified. White, as a common practice, keeps a supply of HSD forms in its office for use in submitting the DBE Utilization Form that indicates White will meet the DBE goal for a particular project. White did not contact HSD or any of the DBEs it listed on the DBE Utilization Form and DBE Utilization Summary Form to confirm that they were DBE certified for the June Letting. White is aware that subcontractors may lose their DBE certification or not apply for recertification. White is also aware that it should not use subcontractors for purposes of meeting the DBE goal that are not listed in the DBE directory unless one calls the Minority Programs Office and confirm directly that a particular company which is not listed is DBE certified for that letting cycle. HSD was not aware that White listed it on the DBE Utilization Form submitted with White’s bid. For White, that is not an uncommon practice. Neither DOT or HSD are depicted by the evidence of having misled White into believing that HSD was a qualified DBE. It is the bidder’s (White) responsibility to verify whether a DBE is authorized for use on a particular project. White personnel did not do this and the applicable DBE directory clearly did not have HSD listed. HSD was not a qualified DBE at the time of the bid letting or proposed bid award. HSD sent a quote for work on the project to Mitchell and White. The quote sent to Mitchell contains a letter in which HSD notes that the company . . . is not listed in the DBE Directory for the June Letting. Unfortunately this means you will not be able to utilize Highway Safety Devices for DBE Goals for the June Letting. At the final hearing, a witness for White asserted that White did not receive the explanatory letter received by Mitchell. Such assertion cannot be credited in view of the demeanor of the witness when testifying. Subsequent to the final hearing in this matter, White submitted information indicating that HSD had received certification as a DBE, effective October 26, 1998. However, White’s submission does not change the fact that HSD was not certified at the time of the bid letting or opening in this matter. White’s bid was evaluated by DOT’s GFEC to determine whether or not White met the DBE goal or provided a good faith effort evaluation for the Project. DOT interprets Rule 14-78.003(2)(b)5, Florida Administrative Code, as not permitting the substitution of a certified DBE for HSD, a circumstance that would have permitted White to meet the DBE goal for the Project. DOT’s Minority Programs Office does the initial evaluation of the DBE portion of the goal. If the goal has not been met, the bid will be reviewed by the GFEC. The GFEC makes a recommendation to the TRC, and the dollar amount of the bid is not a factor considered by the GFEC. The TRC will take into consideration the bid price in its evaluation. The GFEC reviews the bid package by going through every criteria set forth in Rule 14-78.003(2)(b)3,b, Florida Administrative Code, to see if there are any circumstances that would credit the prime contractor in meeting the DBE goal. The GFEC’s evaluation of White’s bid was to determine if the information submitted by White indicated whether good faith efforts were made to meet the DBE goal, not whether White could change HSD for a certified DBE. The GFEC reviewed White’s bid for compliance with the DBE goal and to determine if good faith efforts were made to meet the goal. White did not meet the DBE goal or submit documentation of its good faith effort to do so. The GFEC recommended to the TRC to deem White nonresponsive. The TRC reviewed the GFEC report and accepted the recommendation to deem White nonresponsive. The GFEC determined that Mitchell, however, did meet the DBE goal for the Project. The TRC determined that Mitchell’s bid was within the automatic award criteria and recommended Mitchell be awarded the contract. The TRC recommended to the CAC that White be deemed nonresponsive and award the contract to Mitchell. The review of White’s bid to determine whether it met the DBE goal by the GFEC, the TRC and the CAC were done in accordance with the governing statutes, rules and DOT policy and procedures. Although substitution of DBEs in the performance of a contract after bid-letting is permitted by DOT, the total amount of the bid submitted by a contractor is affected by the bids it receives from DBEs. White selected HSD, without confirming its present status at the time, because White had used this presumed DBE on previous occasions to obtain the best deal for White. White also asserted that, as it may change DBEs after a contract is awarded, the failure to submit a correct DBE is not a material error. However, a contractor may not change DBEs without good cause, such as its inability to perform the work, pursuant to Rule 14-78, Florida Administrative Code. That there is a procedure available after the contract is awarded does not affect the materiality of the failure to submit a qualified DBE in the first instance. If the DOT believes the responsive bids which it receives are too high, it can reject all bids. The bid submitted by Mitchell, at $5,237,848.89, was within the automatic award criteria. DOT’s decision to reject White’s bid for failure to comply with the DBE requirements is consistent with its practice and past policy. The use of an unqualified DBE is a material variation in a bid, as it may impact the price. DOT’s decision to reject White’s bid as non-responsive was not contrary to statute, rule, or policy, or the bid specifications. White did not show that DOT’s action was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order awarding the contract on State Project Nos. 220517-1-52-01 and 220511-1-52-01 to Intervenor, Mitchell Brothers, Inc. DONE AND ENTERED this 16th day of November, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1998. COPIES FURNISHED Mary M. Piccard, Esquire Vezina, Lawrence and Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Brian McGrail, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Donna H. Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32302 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
