The Issue The issue to be determined in this case is whether the Wellness Way Area Plan Map and Text Amendment to the Lake County Comprehensive Plan (“Remedial Amendment”) adopted through Lake County Ordinance No. 2016-1 is “in compliance,” as defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner Cemex is a Florida limited liability company doing business in Lake County. Cemex made timely objections and comments to Lake County on the Remedial Amendment. Petitioner Lake Louisa is a limited liability company that owns property in Lake County. Lake Louisa made timely objections and comments to Lake County on the Remedial Amendment. Cemex leases 1,200 acres of land in Lake County from Lake Louisa. The leased property is located within the area affected by the Remedial Amendment. Cemex proposes sand mining on the leased property and obtained all the required state permits. Prior to adoption of the Remedial Amendment, Cemex sought a conditional use permit from Lake County for its proposed sand mining. Respondent Lake County is a political subdivision of the State of Florida and adopted the Lake County Comprehensive Plan, which it amends from time to time pursuant to section 163.3184, Florida Statutes. Intervenors South Lake Crossings I, LLC; South Lake Crossings II, LLC; South Lake Crossings III, LLC; Clonts Groves, Inc.; Catherine Ross Groves, Inc.; and Cra-Mar Groves, Inc., (referred to collectively as “South Lake”) own 2,500 acres in Lake County which are subject to the Remedial Amendment. Intervenors made timely comments to Lake County on the Remedial Amendment.1/ The Wellness Way Area The Wellness Way Area comprises 15,471 acres in southeastern Lake County. It is bordered by U.S. Highway 27 to the west, the City of Clermont to the north, and Orange County to the east. Currently, the Wellness Way Area is mostly designated as agricultural with some small areas of residential and industrial uses. However, there is only one active agricultural operation. The majority of properties within the Wellness Way Area are large tracts of unused land. Directly east of the Wellness Way Area, in Orange County, is the Horizon West Sector Plan which consists of 23,000 acres and is one of the fastest growing areas in the United States. The Remedial Amendment To address DEO’s objections to the Lake County Wellness Way Sector Plan, the County adopted the Remedial Amendment which converted the Sector Plan into the Wellness Way Urban Service Area. Based on the terms of the settlement agreement, the ordinance adopting the Remedial Amendment, and Lake County’s stipulation on the record, the Wellness Way Sector Plan no longer has force or effect. The Remedial Amendment creates five future land use categories within the Wellness Way Area: Town Center and Wellness Way 1 through Wellness Way 4. Each future land use category allows a mix of uses, but with different density and intensity limits in each category. The highest density and intensity limits are in the Town Center category, located along U.S. Highway 27. The lowest limits are in the Wellness Way 4 category. The Town Center and Wellness Way 1-3 categories have identical permitted and conditional land uses. Wellness Way 4 allows fewer types of land uses and no residential land use because the land is publicly owned and contains a large wastewater reclamation facility. The new land use categories provides for a distribution of land uses by percentage of total land area within the category. In Town Center, the distribution is 25 percent non- residential, 45 percent residential, and 30 percent open space. In Wellness Way 1-3, the distribution is 10 percent non- residential, 60 percent residential, and 30 percent open space. The allowable residential density for each category differs. The Town Center has a minimum density of 6.0 dwelling units per net buildable acre (“du/ac”) and a maximum density of 25 du/ac. Net buildable acre is defined as gross acres minus wetlands, waterbodies, and open spaces. Wellness Way 1 has a minimum density of 3 du/ac and a maximum density of 20 du/ac. Wellness Way 2 has a minimum density of 2.5 du/ac and a maximum density of 15 du/ac. Wellness Way 3 has a minimum density of 2 du/ac and a maximum density of 10 du/ac. Wellness Way 4 has no density criteria because residential uses are not allowed. The allowable intensity for non-residential uses in each category also differs. The Town Center has a minimum average Floor Area Ratio (“FAR”) of 30 percent and a maximum average FAR of 200 percent. Wellness Way 1 has a minimum average FAR of 25 percent and a maximum average FAR of 200 percent. Wellness Way 2 has a minimum average FAR of 20 percent and a maximum average FAR of 200 percent. Wellness Way 3 has a minimum average FAR of 15 percent and a maximum average FAR of 200 percent. Wellness Way 4 has no intensity criteria. Implementation of the Remedial Amendment goals, objectives, and policies is to be accomplished through the review and approval of planned unit developments (“PUDs”). Despite the density allowances stated above, the total number of dwelling units that can be included in a PUD are further controlled by Policy I-8.2.1.1, which ties residential development to job creation. For each dwelling unit proposed in a PUD, a certain number of jobs must be created through the setting aside of areas for non-residential uses. The jobs-to- housing ratio assumes that one job is created for every 450 square feet of non-residential development. Each land use category has a different jobs-to-housing ratio applicable to approved PUDs. In Town Center, the jobs-to- housing ratio is 2.0 to 1.0, meaning 900 square feet of non- residential development must accompany every proposed dwelling unit. In Wellness Way 1, the jobs-to-housing ratio is 1.75 to 1.0. In Wellness Way 2, the ratio is 1.50 to 1.0. In Wellness Way 3, the ratio is 1.35 to 1.0. In the Remedial Amendment, the information and criteria for a PUD application are more detailed and extensive than under the Comprehensive Plan provisions for PUDs outside the Wellness Way Area. For example, a PUD application under the Remedial Amendment must include a report on the PUD’s impact on transportation facilities and the need for additional transportation improvements, and a detailed plan for public facilities, such as potable water, sanitary sewer, and schools. The Remedial Amendment requires each PUD to establish Wellness Way Corridors, which serve as buffers around the border to connect job hubs and neighborhoods through trails and other pedestrian facilities. Meaningful and Predictable Standards Sand Mining Approval Petitioners contend the Remedial Amendment fails to provide meaningful and predictable standards governing sand mining within the Wellness Way Area. Sand mining is listed as a conditional use in all land use categories. Comprehensive Plan Objective III-3.5 and its policies, which address sand mining, were not changed by the Remedial Amendment. They prohibit mining in environmentally sensitive areas which cannot be reclaimed, require mining within aquifer protection zones to be performed in a manner that would not negatively impact water quality, and require mining operators to demonstrate a practical and environmentally sound reclamation plan. Under the Remedial Amendment, an application for a conditional use in the Wellness Way Area must be combined with a PUD application and must comply with the detailed PUD criteria of new Policy I-8.7. By combining a conditional use application with a PUD application, Lake County can impose additional conditions designed to assure the conditional use will be compatible with the surrounding land uses. The Remedial Amendment adds more criteria and greater detail than exists currently in the Comprehensive Plan for reviewing a proposal for sand mining. Adding these review criteria is not a failure to provide meaningful and predictable standards. PUD Densities and Intensities Petitioners contend that the densities and intensities within the Wellness Way Area cannot be reasonably predicted because Policy I-8.2.1.2 permits the density and intensity of developments to exceed or fall below the required maximum and minimum densities and intensities of use so long as a PUD as a whole fits within the limits. Petitioners’ evidence on this point was not persuasive. Applying density and intensity limits to the entire area of a PUD is not unreasonable and does not fail to provide meaningful and predictable standards. Location of Future Land Uses A more persuasive argument made by Petitioners is that the land use planning flexibility in the Remedial Amendment goes too far because the location of particular land uses will not be known until PUDs are approved. Lake County’s arguments in this regard do not overcome the fact that, under the Remedial Amendment, the determination where land uses will be located in the Wellness Way Area is deferred to the PUD process. The Remedial Amendment itself does not establish the location of future land uses in the Wellness Way Area. A landowner or citizen cannot predict where future land uses will be located in the Wellness Way Area. Lake County did not present evidence to show that any other local government comprehensive plan in Florida uses a similar planning approach. There appears to be no other comprehensive plan amendment that was the subject of a DOAH proceeding which left the location of future land uses unspecified in this way. Potential PUDs Petitioners contend that the Remedial Amendment fails to provide meaningful and predictable standards because applications for development approvals in the Wellness Way Area are reviewed on a case-by-case basis for their effect on approved and “potential PUDs.” Policy I-8.7.1 provides: Until and unless a PUD is approved by the Lake County Board of County Commissioners, the property in the WWUSA area shall maintain the existing zoning (e.g. A, R-1, CFD, PUD). All applications for development approvals (i.e. lot splits, conditional use permits, variances, etc.) on any property within the WWUSA area shall be reviewed on a case-by- case basis for the effect of such development approval on adopted or potential PUDs and compliance with the general principles of the Urban Service Area. The Remedial Amendment’s requirement that development approvals account for potential PUDs makes it impossible to predict how Lake County will make a land use decision because it is impossible to know or account for an unapproved, potential PUD. This standard lacks meaning and predictability for guiding land development. Case-by-Case Approvals Petitioners assert that Policy I-8.7.1 also creates internal inconsistency because it requires all development to be approved through the PUD process, but then appears to also provide for non-PUD development approvals on a case-by-case basis. The testimony presented by Lake County seemed to support Petitioners’ claims. Exceptions can be stated in a comprehensive plan without constituting an internal inconsistency. However, the ambiguity of Policy I-8.7.1 causes it to lack meaning and predictability for guiding land development. Urban Form Guiding Principles Policy I-8.2.2 of the Remedial Amendment sets forth guiding principles for development derived from the goals, objectives, and policies for the Wellness Way Area and establishes principles to guide development. Petitioners argue that the principles are not meaningful and predictable standards for the use and development of land because they were described by a Lake County witness at the final hearing as “aspirational.” The policy itself states that, “These guiding principles shall be specifically demonstrated in the PUDs.” The plain meaning of this statement is that application of the principles is mandatory. A witness’ testimony cannot alter the plain meaning of a policy for purposes of an “in compliance” determination. Data and Analysis Planning Timeframes Petitioners contend that the Remedial Amendment is not supported by appropriate data and an analysis because they address only infrastructure needs at the time of the Wellness Way Area’s buildout in 2040; no intermediate timeframes were used. Although section 163.3177(5)(a) requires comprehensive plans to “include at least two planning periods, one covering at least the first 5-year period occurring after the plan’s adoption and one covering at least a 10-year period,” the statute is less clear on the requirements applicable to a comprehensive plan amendment. Petitioners’ evidence and argument on this claim was insufficient to meet their burden of proof. Potable Water Supply Petitioners claim the Remedial Amendment is not supported by appropriate data and an analysis to show that the demand for potable water will be met at buildout. Petitioners’ evidence was insufficient to prove this claim. Internal Consistency Goal I-8 Petitioners argue that Goal I-8 of the Remedial Amendment contains an impermissible waiver of any Comprehensive Plan goals, objectives, or policies that conflict with the Remedial Amendment. Goal I-8 provides: The following Objectives and Policies shall govern the WWUSA as depicted on the Future Land Use Map. In the event that these Goals, Objectives or Policies present either an express (direct) or implied (indirect) conflict with the Goals, Objectives and Policies that appear elsewhere in the comprehensive plan, the provision elsewhere in the comprehensive plan that is in direct or indirect conflict with a Wellness Way Goal, Objective or Policy shall not apply to the WWUSA area. All Goals, Objectives and Policies in the Lake County Comprehensive Plan that do not directly or indirectly conflict with this Goal and associated Objectives and Policies shall apply to the WWUSA area depicted in the Future Land Use Map. Goal I-8 gives no hint as to the nature or the number of potential direct or indirect conflicts that could arise. As explained in the Conclusions of Law, the goal creates an unlawful waiver of unidentified inconsistencies. Urban Service Area The Wellness Way Area is intended to be an urban service area. “Urban service area” is defined in section 163.3164(50): “Urban Service Area” means areas identified in the comprehensive plan where public facilities and services, including, but not limited to, central water and sewer capacity and roads, are already in place or are identified in the capital improvements element. The term includes any areas identified in the comprehensive plan as urban services areas, regardless of local government limitations.” Petitioners contend the Capital Improvements Element of the Comprehensive Plan is inconsistent with the Remedial Amendment because Lake County did not amend the Capital Improvements Element to address public facilities and services in the Wellness Way Area. Lake County responds that it does not own or operate the utility companies that would provide the services, but who owns and operates the utilities has no effect on the statutory requirement to do public utility planning. Lake County argues that it was sufficient for the County to simply identify the utility providers. Section 163.3164(50) requires more. It requires the identification of public facilities and services. Furthermore, section 163.3177(3)(a) requires a capital improvement element “to consider the need for and location of public facilities.” The Remedial Amendment creates an internal inconsistency in the Comprehensive Plan by providing for greater growth and a new urban service area in the Wellness Way Area without amending the Capital Improvements Element to address the greater growth or the urban service area. The Capital Improvements Element should have been amended to include some of the data and analysis that was used to support the Remedial Amendment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission issue a final order determining that the Remedial Amendment adopted by Lake County Ordinance No. 2016-1 is not in compliance. DONE AND ENTERED this 21st day of November, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 21st day of November, 2016.
The Issue The issue in this case is whether the application filed by the Florida Department of Environmental Protection (DEP) for abandonment of a segment of Mission Road, from the Ocala Drive intersection to a point east of Yonview Drive, should be granted; and, if so, what conditions should be placed on the abandonment.
Findings Of Fact Proposed Abandonment and Vicinity The eastern terminus of Mission Road is at Ocala Road. At one time, Mission Road intersected Ocala Road and extended farther east along the alignment of Tennessee Street. However, when Tennessee Street was extended farther west, the intersection of Tennessee Street and Ocala Road was moved slightly south of the juncture of Ocala Road and Mission Road. Now at the junction of those roads, Mission Road is designed to have only a right turn in from Ocala Road southbound, and a right turn out from Mission Road onto Ocala Road, headed south. Mission San Luis (Mission) is bisected by Mission Road near its eastern terminus at Ocala Road. While the Mission is accessible from Mission Road, its main entrance is on Tennessee Street just west of Ocala Road. The Mission has administrative offices and an archeological laboratory on the south side of Mission Road, while the re-created Mission and Apalachee Village, along with most of the archeological remains, and visitor parking, are on the north side of Mission Road. Yonview Drive joins Mission Road from the south. The juncture of those two roads marks the western terminus of the part of Mission Road that is the subject of the application for abandonment; Ocala Road marks the eastern terminus of the proposed abandonment. All of the land on either side of this part of Mission Road is owned by the State and is part of the Mission. Proceeding west from Yonview, the Mission is on the northeast side of Mission Road, which provides access to the current parking lot for the Mission and the current visitor center, which is an adaptive use of a house built in 1938. Along that stretch of Mission Road, The Timbers condominium development is on the southwest side of Mission Road. Just west of the Mission property, San Luis Road intersects Mission Road. To the north of Mission Road, San Luis is a public road that proceeds north, past Leon County's San Luis Park (which is on the east side of the road), and residential neighborhoods to the west side, to where San Luis Road intersects Tharpe Street. To the south of Mission Road, aligned with San Luis Road, is an entrance to The Timbers. Sometimes referred to as an extension of San Luis Road, the roadway within The Timbers actually is private and serves as access to The Timbers condominium units; it continues through The Timbers and continues between other properties to the development's other entrance on White Drive. As Mission Road proceeds west from San Luis Road, the rest of The Timbers is on its south side; on its north side, Solana Drive joins it from the residential neighborhood to the north. Solana Drive is a short street between San Luis Road and Mission Road. The northern terminus of Solana Drive is near the southern end of the County Park. Petitioners and Their Interests Petitioners are The Timbers Homeowners’ Association, Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually. The individual Petitioners each own one or more units within The Timbers. Ms. Baldwin has resided there for nearly ten years. The HOA is charged with representing the interests of the owners and residents of The Timbers. It owns and has responsibility for the repair, maintenance, and improvement of the common areas within the development. Mr. Moran and Ms. Baldwin are officers of the HOA. The Timbers is a 223-unit condominium community that fronts, along its entire length, the south side of Mission Road between White Drive and Yonview Drive. A portion of this frontage is located directly across Mission Road from what is now Mission San Luis. The private road within The Timbers between Mission Road and White Drive is how The Timbers connects to the public road system. As it fronts Mission Road, The Timbers is a pleasant, wooded community of multiple condominium structures, each of which fronts on a side street connected to its private "San Luis Road." The Timbers is conveniently located for easy access to Florida State University, Florida A&M University, and other points to the south or east of The Timbers (including downtown Tallahassee). A significant number of residents of The Timbers use Mission Road by turning right onto Mission Road, which takes them to a right turn onto Ocala Road, with no stop sign, stop light, or significant intersection in between. From there, they can go straight south on Ocala Road or turn east or west on Tennessee Street. If the abandonment application is granted, that route would be eliminated, and there would be two remaining ways to leave The Timbers--via the White Drive exit, or by making two left turns, one onto Mission Road and the second, after a stop sign, onto White Drive. Meanwhile, drivers traveling east (toward town) on Mission Road from virtually all points west of The Timbers (and thus west of White Drive) on Mission Road, would take a right curve onto White Drive from Mission Road but they would do so with the right-of-way or, if signalized, a traffic light timed to give them a “longer green” preference. Those Timbers residents, owners, and visitors exiting at White Drive would have to negotiate their left turn without the right-of-way and against whatever increased traffic might be introduced onto White Drive if Mission Road were closed. From there, depending on the ultimate destination, traffic could either go straight on White Drive towards Pensacola Street or turn left onto Tennessee Street to reach the Tennessee Street/Ocala Road intersection. The intersection at White Drive and Tennessee Street is signalized but is not consistent with current design standards in that it has an offset center line. According to the planned unit development documents for The Timbers, the White Drive entrance was supposed to be the main entrance to the development. However, the Mission Road entrance has come to function more like the actual “main” and is more attractive aesthetically. Petitioners have spent significant effort and money in beautifying and otherwise maintaining its private extension of San Luis Road through curbing, landscaping, signage, etc. The part of the road that joins The Timbers to White Drive is not as well constructed and is not bounded by The Timbers but rather by other properties. It also is where the garbage dumpsters for the development are located. (On the other hand, the mailboxes for the development also are located off that part of the private road.) The closure of Mission Road probably will shift some internal Timbers traffic from the Mission Road entrance to the White Drive entrance. It also is possible that some external traffic coming south on San Luis Road might use the private extension of the road within The Timbers as a "short-cut" to White Drive. However, the road through the Timbers may not prove to be a desirable "short-cut" because it is a lower-quality road, has potholes, and is not designed for through-traffic but rather as a feeder road for the parking areas of the development. There are three stop signs; the turns are tight; and cars sometimes are parked along the side of the road. As a result, "friction" would slow through-traffic and discourage use of the road as a cut- through. The design of San Luis Road also makes it less likely that The Timbers would be used as a short-cut to White Drive. There is a hard right turn in the road signed for 15 miles per hour that people tend to avoid by turning onto right onto Solana Drive. Many residents walk within The Timbers, including to the mailboxes, to the tennis courts, and to the dumpsters, or to walk their dogs (perhaps in the green space created by an abandoned railroad right-of-way in the vicinity) on the western side of The Timbers. If traffic increases on that side of the private extension of San Luis Road, both the safety and the subjective experience of those pedestrians would be adversely affected to some extent. However, those effects are speculative. A resident-controlled gate system for the Mission Road entrance to prevent cut-through traffic likely would cost The Timbers HOA in the neighborhood of $15,000. Associated costs for telephone connections to each of the units, electrical service, and maintenance would likely range from $75 to $80 per residential unit per year. But such a gate is not desired by Petitioners as it would constitute a significant inconvenience for Petitioners and others who reside in or visit The Timbers. Should the Timbers elect to install sidewalks along its San Luis Road to accommodate increased or shifted traffic within The Timbers, the costs associated with that could reasonably exceed $110,000, including engineering, permitting, utilities, and remediation. The owners of units within The Timbers would ultimately bear the costs of any needed improvements or additional maintenance that would result from a closure of Mission Road. However, it is speculative whether such measures will be needed or actually undertaken. It is possible that the owners of units in The Timbers might suffer some diminution in property value as a result of the proposed abandonment. According to a property appraiser, Richard Boutin, there will be diminution in value of approximately one percent of the value of units, which ranges between $120,000 and $150,000, that would materialize over time, taking two-to-five years to occur. Whether such a diminution in value actually will occur is uncertain. As described above, due to the location of The Timbers, the proposed abandonment will adversely affect Petitioners more than it will adversely affect most of the rest of the general public. Most of the greater adverse effects on Petitioners will be similar in kind to the adverse effects on most of the general public. At least one of the greater effects on Petitioners also is different in kind -- namely, some drivers probably will use Petitioners' private road as a cut-through. See Findings 9-10, supra. Standards for Abandonment Applications A guiding principle for all City Commission action is to act in the public interest. The City Commission must act in the public interest, whether stated in a regulation or not, including when acting on an application for abandonment of right- of-way. City Commission Policy 410 has been used as a guide for reviewing abandonment applications. Policy 410 provides: The City of Tallahassee will not consider any application for right-of-way abandonment, if the subject right-of-way is currently being used by the City, or if the City has any plans to use the right-of-way at some point in the future. Abandonment of a right-of-way must be demonstrated to be in the best interest of the general public. Neither abandonment of a right-of-way solely for the purpose of placing it on the tax rolls in its current state, nor abandonment of a right-of-way solely to benefit an abutting property owner, is considered to be sufficient to meet the test of "in the public’s best interest". Abandonment of right-of-way automatically reverts only to abutting property owners with one-half of the right-of-way going to each owner by operation of law upon adoption of a City ordinance. Provide applicant with a Quit [sic] Deed for recording, if the right-of-way is abandoned. Unlike ordinances, policies can be waived. Notwithstanding paragraph 1 of the Policy, the evidence was clear that the City abandons right-of-way that is in use, either explicitly or implicitly waiving paragraph 1. Over 90 percent of the abandonment applications processed by the City have been for rights-of-way that are currently being used, including some that were being used heavily. The actual standards for determining whether to abandon a road have been found in the other parts of Policy 410, especially in paragraph 2. Although Policy 410 had a sunset date of March 25, 1997, it has not been replaced, and the Planning Department continued to use it as a guide for review of abandonment applications. On February 23, 2005, the City Commission reviewed proposals from the Planning Department for modifications to the City’s abandonment policies, procedures, and fee requirements. The proposed modifications included revised procedures, added definitions, and added the following specific review criteria: The approval of the application shall not create any safety or public health hazard, including any environmental health hazard; The approval of the application shall not result in the preclusion of right-of-way or fee simple access to any existing parcel/lot of record; The approval of the application shall not result in the preclusion of access to any publicly-maintained facility or infrastructure; The approval of the application shall not create any condition inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long Range Transportation Plan included therein; The approval of the application would not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain; The approval should not adversely affect service access required for any official public safety, utility service, waste collection service provider; the United States Postal Service; Leon County Schools (school buses); or TalTran. On February 23, 2005, the City Commission approved the modifications and approved the Planning Department's recommendation to repeal Policy 410 since the modification would be more definitive. The City Commission approved the Planning Department’s recommendations, and directed staff to draft an ordinance incorporating the proposed modifications to the abandonment policies, procedures, and fee requirements and to bring the ordinance back before the Commission for adoption. As of this date, due to staffing constraints, the Planning Department has not taken an ordinance back to the City Commission for review and action. Conditions of Abandonment The City's Planning Department has placed several conditions on the proposed abandonment to address issues raised by the reviewing departments during the processing of abandonment applications. Placing conditions on abandonment of right-of-way is authorized and common. A standard condition for abandonment is that easements be retained by the City for any utilities. It also is standard to require the maintenance of adequate emergency access for the fire and police departments. Also standard, a vehicular turn- around will have to be constructed at the new eastern terminus of Mission Road. To connect with other bicycle-pedestrian trails in the area and enhance these modes of transportation and the City's Bicycle-Pedestrian Master Plan, the Planning Department recommends that a bicycle/pedestrian easement around the perimeter of the Mission be dedicated to the public as a condition of the abandonment. Finally, the Planning Department recommends that the proposed abandonment be conditioned on payment by the State for signalization at the Mission Road and White Drive intersection if, within 12 months of the abandonment, traffic increases to a point where signalization there is warranted. In testimony, the Executive Director of the Mission, Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian easement for the City, and DEP did not oppose either the standard or recommended conditions of abandonment. Effects of New Mission Visitor Center on Pedestrian Safety The building that currently functions as a Visitor Center for the Mission is an adaptive use of a 1938 house. Limited restrooms are in a separate building next to the house. Currently, due to the lack of accommodations, frequent requests to hold major events, weddings, receptions, and special functions must be denied. Currently, Mission staff must cross Mission Road between their offices and the public northern section. Staff crossings are a cause for concern because of the limited sight- line distance around the curve in Mission Road to the west. They are warned regularly to use caution, but no other measures to protect staff have been implemented or requested to date. Currently, visitors to the Mission drive to the public parking area on the northern portion of the site. Visitors then remain on the north side of Mission Road until they return to their vehicles to leave. In 2006, the Florida legislature appropriated funds to build a new Visitor Center at the Mission. This Center will be in excess of 20,000 square feet and will include public classrooms, a place to show orientation films, exhibits, 20 public toilets, and a meeting room accommodating 250 people. The new Visitor Center will be a vast improvement over the current facility. The evidence was that the best location for the new Visitor Center is on the western portion of the Mission property south of Mission Road. The site was selected because it is relatively flat and because the relatively few archaeological remains there have been mitigated. The plans are to have people enter the Mission using the driveway entrance on Tennessee Street, park around the new Visitor Center, proceed through the Visitor Center for their orientation, and then walk to the main area of the park, where the re-created Fort, Mission, Apalachee Village, and rich archeological sites are located. If Mission Road is not abandoned, the visitors would be crossing just east and quite close to a sharp curve in the relatively narrow, canopy-like road, which has deep-cut banks. Petitioners suggest that the new Visitor Center could be put on the northern part of the site. Indeed, before the State acquired the land on the south side of Mission Road where it now intends to build the new Visitor Center, the State was planning to build it on the north side of the road. However, the evidence was that the recently acquired site on the south side of the road is better suited and would be a much greater benefit to the general public. In any event, the evidence was that the State is going forward with its plans for the new Visitor Center and already has proceeded with obtaining environmental and building permits for construction on the preferred site. A conservative count of on-site visitation at the Mission last year was 30,239. There are activities year-round, including costume interpretation, a living history program, special events, and camps, including every teacher planning day and break. Most of the Mission programming is geared towards children, and approximately ninety percent of the visitors are children. The State hopes and expects that visitors to the Mission will increase dramatically with construction of the new Visitor Center. The State continues to expect that a high percentage of these visitors will be children. The application for abandonment is based on the reasonable prospect of increased future use of the facility. The application for abandonment seeks to protect the expected increased number of visitors, including many groups of children, and staff from the danger of having to cross back and forth across Mission Road. Pedestrian safety in connection with the use of the planned Mission facilities is a clear benefit to the general public. The abandonment application also would enable the State to optimize the functioning of the Mission, which also benefits the general public. Negative Effects of Abandonment At the same time, granting the application for abandonment would cost the general public in other ways, which the Petitioners point out. The segment of Mission Road proposed to be abandoned has a "canopy-road-like feel" (although it is not officially designated as a canopy road). The public no longer would be able to experience driving on it. A traffic study done by Wilson Miller on behalf of the State confirmed that traffic on the segment of Mission Road in question is relatively light. Traffic count data from 2008 showed that the annual average daily traffic ("AADT") was 1,500 vehicles a day, including both directions. Approximately 57 percent of the 1,500 cars move in an easterly direction. By comparison, the AADT for other area roads in the vicinity is significantly higher: 9,000 vehicles for White Drive; 34,000 for Ocala Road; and 42,500 for Tennessee Street. Mission Road is classified as a minor collector road. The capacity of a minor collector is between 13,000 and 14,000 AADT. The AADT established by the Wilson Miller study is only about 10% of the road's capacity, which is very light for a minor collector road. If the application for abandonment is granted, traffic will shift to other roads. However, the Wilson Miller study was not an origin and destination study and was not sufficient to determine with any precision how the traffic would shift. For that reason, Petitioners' attempt to use the traffic study to identify and quantify the costs associated with such travel shifts was not convincing. Some increase in traffic on other area roads will occur, but it is speculative based on this record where the increases might occur, how large they will be, and whether they will result in the need for taxpayer-funded road and traffic construction. Petitioners contend that the proposed abandonment will shift some eastbound traffic on Mission Road to White Drive. If it does, White Drive is a major collector with recent improvements and excess capacity. Any additional traffic on White Drive would not be significant from a traffic planning standpoint. It might make the road network more efficient overall (even though certain trips may become less efficient). It is possible that the re-routing of traffic from the Mission Road and Ocala Road intersection may be significant enough to warrant a traffic signal at White Drive and Mission Road. For this reason, the City staff recommends, as a condition for abandonment, that the State pay for signalization at that intersection if the need arises within a 12-month period after the abandonment. Based on the evidence, it should not be anticipated that other road and traffic improvements will be necessary as a result of the abandonment, except perhaps reversal of the stop condition at Mission Road and San Luis Road and possibly a turn lane on Solana Drive at its Mission Road junction. Petitioners also contend that the value of the 1.34 acres of road right-of-way to be abandoned is a cost to the general public that should be considered. The appraised value of the 1.34 acres was $240,000, using an "across the fence" appraisal methodology and assuming high-density residential property "across the fence" even though the property on either side of the proposed abandonment would be park land, and the transfer of use from road to park would be from one public purpose to another public purpose. In any event, the City cannot legally "charge" for abandoning right-of-way, and the value of abandoned right-of-way is never a consideration in the City's review of an abandonment application. See Conclusion 77, infra. Petitioners also contend that the proposed abandonment will have the negative effect of hampering emergency response in the area. Any road closure could result in a longer emergency response time by a matter of minutes in a particular circumstance and, depending on the emergency, it is possible that a delay of mere minutes could be significant and even mean the difference between life and death. But the evidence was clear that, from any reasonable planning perspective, the proposed abandonment would not present significant difficulties to fire, hazardous material, or police responders, assuming that maintaining adequate emergency access into the Mission itself is made a condition of the abandonment. Geographic areas are assigned to Fire Department stations for primary response. The response routes of drivers are not assigned, but are instead discretionary on the part of the driver based on the time of day, traffic patterns, nature of the road, and possible school zones. The primary station is called as the First Due, with the secondary being Second Due, and so forth. Station 4, located at the corner of Pensacola Street and Appleyard Drive, is the First Due Station, or engine company, for the area of the proposed abandonment, including The Timbers. The typical route for Station 4 would be to travel from its location at Appleyard Drive and proceed to Tennessee Street, turn right and proceed east to White Drive, then turn left and proceed north to Mission Road. This route would not be affected by the proposed abandonment. The Second Due Station for this area is the Main Fire Station located at 327 North Adams Street. The probable emergency response route for a fire truck coming from this Station would be to travel west on Tennessee Street, go through the Ocala Road intersection with Tennessee Street, turn right and proceed north on White Drive, and turn right and proceed east on Mission Road. The alterative route of proceeding north on Ocala Road at the Tennessee Street intersection and turning left onto Mission Road would be extremely difficult to navigate for a large fire truck, particularly in light of traffic, and typically would not be the preferred route. The typical route from the Second Due station is not affected by the proposed abandonment. The Third Due station for this area is Station 8, which is located on Hartsfield Road. This Station is situated to the west of the Timbers and the Mission. A typical route from this Station to the Timbers would be to drive east on Hartsfield Drive and take one of several southerly connections to Mission Road, and then drive east on Mission Road to access The Timbers or the Mission. Another consideration for Fire Department emergency access is the specialized functions of certain stations in two areas--Urban Search and Rescue, and the Hazardous Material Response. The Urban Search and Rescue team provides specialized services including searching through collapsed buildings and piles of debris. The primary station response for Urban Search and Rescue is Station 4, and its access is unaffected by the abandonment. The primary Hazardous Material Response team is Station 2, located on Sharer Road. There is a secondary specialized station for hazardous materials response, Station 3, which is located on South Monroe Street at Paul Russell Road. In addition, all of the stations have some ability to provide hazardous materials response. Currently, a possible route from Station 2 to the Timbers eventually would take Ocala Road to Mission Road. However, this route is only available for single engine fire trucks. Due to the nature of the equipment it uses, the hazardous materials team may instead proceed along Interstate 10 to Capital Circle and head back east to the area. During a response to an incident, this specialized team would be driving en route, meaning with traffic and not in emergency mode, and the First Due station would already have sent a truck to the site along a route unaffected by the proposed abandonment. As for the Police Department, the main type of call from The Timbers has been for public disturbances, which are frequently related to parties and generally not emergencies. In the three years of calls, only one call received could be considered an emergency response, which was for a young lady who had erratic breathing after passing out from drinking too much alcohol. In contrast to the Fire Department, police patrol cars have no fixed locations but rather are constantly on patrol. Dispatch for police prioritizes current needs and locations of vehicles. The Police Department has a number of methods it can use to access an area in case of an emergency. In addition to the standard method of reaching an area by car, potential options to reach an area include by foot, bike, and helicopter. Even deployment of an armored car/tank type vehicle would be possible if the situation warranted it. If the abandonment occurs, there will be three main routes to access the area, including San Luis Road, White Drive, and Mission Road from the west. With the two entrances to The Timbers, these routes provide at least five different ways to access The Timbers. Some locations in the City, such as cul-de- sacs, have only one access route. The various approaches to the area in question provide more than sufficient access. The proposed abandonment would result in the elimination of a less-than-ideal intersection at Mission Road and Ocala Road. Resulting from the extension of Tennessee Street to the west of Ocala Road, the intersection at Mission Road and Ocala Road does not meet current design standards because it is too close to Tennessee Street. It is not unusual for cars turning right from Mission Road onto Ocala Road to cross two or three lanes within a very short distance in order to turn left onto Tennessee Street. This maneuver is dangerous and illegal. Of six accidents at the intersection over four years, five involved oncoming traffic striking a vehicle turning onto Ocala Road from Mission Road. In a three-month period in 2006 alone, there were three such collisions. One reason there are not more similar accidents appears to be that the danger is so obvious that most drivers--both those attempting the maneuver and those driving south on Ocala Road--use caution. In addition, many of the local residents have become quite skilled at negotiating the intersection. Another illegal maneuver at this less-than-ideal intersection is sometimes used by cars heading north on Ocala Road and crossing Tennessee Street. Since it is not possible to make a legal turn left onto Mission Road, some turn left into a business parking lot on the northwest corner of Tennessee Street and Ocala Road, drive through the business parking lot, and then turn left onto Mission Road. Petitioners contend that the proposed abandonment will shift traffic from the Mission Road/Ocala Road intersection to the White Drive/Tennessee Street intersection, which also is inconsistent with design standards due the centerline offset, making the left turn onto Tennessee Street from White Drive potentially dangerous. However, whether and how much traffic would be shifted to that intersection was not proven. In addition, most of the traffic experts who testified were more concerned about the dangers inherent in the Mission Road/Ocala Road intersection and thought elimination of the Mission Road/Ocala Road intersection would make the Ocala Road/Tennessee Street intersection more efficient. Comprehensive Plan The evidence was that, with the conditions recommended by the City's Planning Department, the proposed abandonment does not create any condition that is inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long- Range Transportation Plan. Goal 2 of the Historic Preservation Element of the Comprehensive Plan is to “[e]nsure that all municipal and county actions encourage and promote the preservation of this community’s historic resources.” Closing the proposed portion of Mission Road will serve Goal 2 by supporting and satisfying Policy 2.1.3 (mitigate the impact of development on historic resources), Policy 2.1.5 (property listed in the Florida Master Site File), and Objective 2.4 (develop a land conservation program to protect historic resources). The proposed abandonment also is consistent with other parts of Goal 2, namely: Objective 2.5 (establish a program to protect significant archaeological resources); Policy 2.5.1 (mitigation of adverse impacts to significant sites); Policy 2.5.2 (archaeological sites to be filed with Florida Master Site File and Archaeological Sensitivity Zone Maps of Leon County); Objective 3.2 (provide for the interpretation of local government-owned historic resources in parks and other public lands); Policy 3.2.1 (support and encourage local projects involving walking, bicycling and driving tours through historic areas); and Policy 3.2.2 (include the existence of historic resources as a criterion in the acquisition of public parks). The recommended bicycle/pedestrian path easement condition is consistent with Goal 6 of the Conservation Element of the Comprehensive Plan, which encourages the City/County to "implement a county-wide greenways network . . . to provide for . . . educational and historical interpretive opportunities and increased opportunities for alternative modes of transportation." Goal 6 of the Conservation Element of the Plan and supporting Policies 6.1.1 through 6.1.4 were the origin of the Tallahassee-Leon County Greenways Master Plan. The intent was to link historic and natural resources throughout the community, linking them to residential, work, and business areas. The bicycle/pedestrian easement link San Luis City Park trails with an existing trail at the intersection of Tennessee and Ocala. The proposed abandonment is consistent with the Parks and Recreation Element of the Comprehensive Plan in that state facilities may be included to meet state-required levels of service. Parks are essential to a sustainable community. The Land Use Element of the Comprehensive Plan has the general goal of protecting natural and aesthetic environments and residential areas. One way to protect residential areas is not to route collector roadways through them. Everything adjoining the western boundary of the Mission is classified as Residential Preservation. Closing Mission Road will force traffic away from this area and protect 18 homes on San Luis Road from cut-through traffic. The Planning Department would downgrade area street classifications to "local streets" to reflect their true use and provide better neighborhood protection. Studies performed by the Planning Department resulted in a multi-modal transportation district and a greenways master plan. The City operates under the Tallahassee/Leon County Multimodal Transportation District Plan. That Plan focuses on bike paths, mass transit, and sidewalks to facilitate greater mobility with fewer roads. Service levels for bicycle paths in the San Luis area are close to critical. The bicycle/pedestrian easement will provide greater connectivity, thereby improving service levels. Many students reside in the vicinity of the proposed road closure and provision of a bike path connecting the areas north of Mission Road with the Ocala Trail south of Tennessee Street would attract more bicycle traffic in the hopes of changing the mode of transportation for college students. The City has a Tallahassee-Leon County Greenways Master Plan (Greenways Plan). The abandonment application provides an opportunity under the Greenways Plan. The bicycle/pedestrian easement will connect an existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park. This is consistent with the Greenways Plan. The City has adopted the Bicycle and Pedestrian Master Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to facilitate greater awareness of bike and pedestrian facilities and to promote construction of new facilities. The bicycle/pedestrian easement would provide greater accessibility to existing amenities and infrastructure and meet the intent of the Bike/ped Plan. Petitioners argued that there already exists a better connection between the existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park via Ocala Road and Continental Avenue. However, the evidence did not prove that the existing route would be safer or better than the connection that would become available as a result of the bicycle/pedestrian easement condition on the proposed abandonment. Even if it would be, an additional route and connection still would serve a public benefit. Petitioners also pointed out that State could dedicate an easement through its property for purposes of a bicycle/pedestrian connection without applying for abandonment of right-of-way and that the City never asked for such a dedication before the State applied for application of the right-of-way. But it is typical to consider such matters in the context of an application for abandonment. Alternatives to Abandonment Petitioners concede that pedestrian safety at the Mission San Luis "would be rendered perfect if the road were abandoned, closed, and eliminated." However, they contend that other steps could be taken to protect the pedestrians as well or better without abandoning the road. First, Petitioners suggest the alternative of a pedestrian crossing with a pedestrian-controlled stop light and advance warning flashers. This suggestion was supported by the testimony of Petitioners' traffic expert, Wayne Coloney. But he assumed there would be 360 feet between the pedestrian crossing and the curve in Mission Road. Actually, the pedestrian crossing would be only approximately 210 feet from the curve, which is less than the 330 feet that Mr. Coloney considered to be safe. The other traffic experts also believed that it would be unsafe to design a pedestrian-crossing that close to the curve, even with advance warning flashers--a design that works best on straight roads with long sight-line distances, such as Meridian Road. Next, Petitioners suggest the construction of an overpass. This would be a more expensive proposition. It would require the construction of ramps, stairs, and elevators to comply with the Americans with Disabilities Act. In addition, to be effective in protecting pedestrians, fencing would have to be installed for a considerable distance on both sides of the road to discourage pedestrians from crossing the road instead of using the overpass. According to Mr. Coloney, all of this would cost between $300,000 and $390,000 to install and between $20,000 and $30,000 to maintain. Both the overpass and the fencing would be at odds with the environment the State would be trying to re- create and maintain on the Mission property. Petitioners also suggest digging a tunnel under the road, which would be less obvious than an overpass. However, this also would require fencing to be effective and would be the most expensive of the suggested alternatives--costing between $450,000 and $690,000 to install. In addition, it would require digging a tunnel through artifact-rich earth, which would be contrary to the a primary purpose of Mission San Luis. Application of Findings to Standards Paragraph 2 of Policy 410 requires a demonstration that an abandonment of right-of-way is "in the best interests of the general public." It is clear that the proposed abandonment is not in any private interest since the abandonment is to the State for incorporation in its Mission San Luis, a public facility. The abandonment is not for the sole purpose of placing property on the tax rolls, or for the benefit an abutting private property owner. It is to benefit the public. It also is primarily to protect the safety of pedestrians working at and visiting the facility, including many school children. For these reasons, the abandonment clearly is in the public interest, as opposed to any private interest. Whether it is in the best interest of the general public is a more difficult judgment to make. But, on balance, the abandonment application, with the standard and recommended conditions, probably is in the best interest of the general public. The proposed abandonment also meets the new policy criteria for abandonment of right-of-way. It does not create any safety or public heath hazard, including environmental health hazard. It does not preclude access to any existing parcel or lot of record. It does not preclude access to any publicly- maintained facility or infrastructure. It does not create any condition inconsistent with the Comprehensive Plan, including the Long-Range Transportation Plan. It does not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain. It does not adversely affect any required service access for any official service provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission recommend to the City Commission that DEP's application for abandonment of right- of-way be granted, with the standard and recommended conditions. DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2008. COPIES FURNISHED: Deepika Andavarapu Tallahassee-Leon County Planning Department 300 South Adams Street, Fourth Floor Tallahassee, Florida 32301-1721 William H. Davis, Esquire Dobson, Davis & Smith 610 North Duval Street Tallahassee, Florida 32301 Jonathan P. Sanford, Esquire Office of the City Attorney 300 South Adams, Box A-5 Tallahassee, Florida 32301 Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
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) (C) 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. FINAL ORDER NO. DCA10-GM-016 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 as indicated to each of the persons listed below on this Y day of \W. , 2010. aula Ford Agency Clerk By U.S. Mail Mark E. Lupe, Esquire Assistant City Attorney City of Cape Coral Post Office Box 150027 Cape Coral, Florida 33915-0027 Jeffrey Brown, Esquire Oertel Fernandez Cole & Bryant PA PO Box 1110 . Tallahassee, Florida 32302-1110 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060
The Issue The ultimate issue is whether Sarasota County's comprehensive plan amendments adopted by Ordinance No. 2007-64 (Plan Amendments), as amended by remedial plan amendments adopted by Ordinance No. 2008-33 (Remedial Plan Amendments), are in compliance, as provided by Section 163.3184(1)(b), Florida Statutes, with respect to: 1) whether the county's designation of several segments of University Parkway as Level of Service (LOS) D for concurrency review, on the basis of a claim that the road is "constrained," is supported by data and analysis; 2) whether the supporting traffic analysis was conducted in a professionally acceptable manner; and 3) whether the identified transportation facilities are financially feasible.
Findings Of Fact Background Petitioner owns the Westfield Sarasota Square Mall in Sarasota County. The mall is located at U.S. Route 41 and Beneva Road. Petitioner timely submitted written and oral comments to the Plan Amendments and Remedial Plan Amendments. Having purchased the property in July 2002, Intervenors are the developers of Sarasota Interstate Park of Commerce (SIPOC) in Sarasota County. The development is located at the southwest quadrant of the interchange of I-75 and University Parkway. The boundary between Sarasota and Manatee counties is somewhere within the right-of-way of University Parkway between I-75 on the east (or a point just east of I-75) and U.S. Route 301 on the west. University Parkway is an east-west arterial, multilane road that extends to the east of I-75 past a large multiuse development in Manatee County known as Lakewood Ranches. To the west, University Parkway extends past the Sarasota airport to its terminus at U.S. Route 41 in the vicinity of New College. Honore Avenue is a north-south road (at least it is in the vicinity of University Parkway) and is the first road west of SIPOC. The first road south of SIPOC, DeSoto Road is an east-west road terminating just west of I-75 on the east and a short distance west of Honore Avenue on the west. Cattlemen Road is a major north-south road that runs just west of I-75 and crosses two roads with I-75 interchanges to the south of the University Parkway interchange: Fruitville Road and Bee Ridge Road. Until SIPOC, the northern end of Cattlemen Road was south of University Parkway. However, Intervenors are constructing North Cattlemen Road from University Parkway to the north (directly across from the point at which Cooper Creek Boulevard terminates at University Parkway), past DeSoto Road, to Richardson Road, which is the northern terminus of Cattlemen Road at present. Richardson Road is just north of Fruitville Road. On July 27, 1993, Sarasota County issued a development order (DO) for a development of regional impact for SIPOC. Pursuant to the DO, the approved use for SIPOC Phase I was 633,888 square feet of retail, and the approved uses for SIPOC Phase II were 215,210 square feet of retail, 547,488 square feet of light industrial, 240,982 square feet of office, 500 hotel rooms, and 750 multifamily dwelling units. Phase I of SIPOC is substantially complete and has resulted in the construction of a SuperTarget at the site. This case involves the development that will constitute Phase II of the SIPOC. On July 10, 2007, at the request of Intervenors, Sarasota County adopted two ordinances concerning SIPOC: Ordinance No. 2006[sic]-80 and Ordinance No. 2007-64. Ordinance No. 2006-80 amends the SIPOC DO to approve the following uses: 1,680,000 square feet of retail, 220,000 square feet of office, 500 hotel rooms, and 1750 multifamily dwelling units (Amended DO). The Amended DO, which was never challenged, is effective on the date that the Plan Amendments described in Ordinance No. 2007-64 are found in compliance. The buildout date of the Amended DO is December 31, 2009. For Phase II, the traffic impact intensities may not exceed 6405 gross p.m. peak hour trip ends or 3795 net new p.m. peak hour trip ends. Amended DO, p. B-6. The Master Development Plan depicts the proposed development, which fronts onto University Parkway, as divided into eastern and western sections by proposed North Cattlemen Road (and a 330-wide FPL transmission easement alongside the east side of North Cattlemen Road). From north to south, on the west side of the road and transmission line are commercial/office, commercial/residential, residential, and a conservation easement in the back of the parcel. On the east side of the road and transmission line are commercial/residential/office, residential, and a large stormwater management easement in the back of the parcel. Amended DO Condition H addresses transportation. Condition H.1 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase I or II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.1 states: No Construction Plan approval shall be issued for any SIPOC Phase I or II development until such time as contracts for construction of the following improvements have been executed, and no Certificate of Occupancy nor temporary Certificate of Occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at North Cattlemen Road intersection, including the following turn lane additions: One eastbound right turn lane for a total of one; One westbound left turn lane for a total of two; Two northbound left turn lanes for a total of two; Two northbound through lanes for a total of two; and Two northbound right turn lanes for a total of two. Construction of a northbound right turn lane at the Honore Avenue/DeSoto Road intersection. Construction of DeSoto Road as a divided two lane arterial from Honore Avenue to North Cattlemen Road. Construction of North Cattlemen Road as a divided four lane roadway from University Parkway to DeSoto Road. These improvements have been identified as being required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements, except the County shall assist in the acquisition of required right-of-way not under the ownership or control of the Applicant, provided that the Applicant shall be responsible for the expense thereof (except as otherwise set forth in agreements between the County and the Applicant). Amended DO, p. B-19. Amended DO Condition H.2 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.2 states: Construction Plan approvals shall not be issued for any SIPOC Phase II development until such time as contracts for the construction of the following improvements have been executed, and no certificate of occupancy nor temporary certificate of occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at Honore Avenue intersection including the following turn additions: one northbound left turn lane for a total of two; one westbound left turn lane for a total of two; one northbound through lane for a total of two; and one northbound right turn lane for a total of one, prior to 40 percent of the DRI buildout (1518 net new p.m. peak hour trips). Construction of the University Parkway at Cooper Creek Boulevard/North Cattlemen Road intersection including the following lane additions and/or modifications: reconfiguration of the inside northbound through lane to a left turn lane for a total of three; one southbound through lane for a total of one; one southbound right turn lane for a total of one prior to 60 percent of the DRI buildout (2277 net new p.m. peak hour trips). Construction of a northbound left turn lane at the University Parkway at I-75 East Ramps intersection for a total of three prior to 50 percent of the DRI buildout or 1898 net new p.m. peak hour trips. Signalization of Honore Avenue at DeSoto Road intersection when signal warrants are met. Construction of a roundabout at the North Cattlemen Road at DeSoto Road intersection. Construction of North Cattlemen Road as a divided four lane roadway from DeSoto Road to Richardson Road. Construction of Fruitville Road at Cattlemen Road intersection including the following lane additions: one northbound through lane for a total of two; one northbound left turn lane for a total of two; one southbound through lane for a total of two; one eastbound left turn lane for a total of two; one eastbound through lane for a total of four; and one westbound left lane for a total of two. Construction of Cattlemen Road at the North Access Driveway intersection including the following traffic control type and lane additions: Signalization of the intersection; One northbound left turn lane for a total of one; Two northbound through lanes for a total of two; One northbound through/right turn lane for a total of one; Two southbound left turn lanes for a total of two; Two southbound through lanes for a total of two; One southbound right turn lane for a total of one; Two eastbound left turn lane [sic] for a total of two; One eastbound through/right lane for a total of one; Two westbound left turn lane [sic] for a total of two; One westbound through lane for a total of one and; Two westbound right turn lanes for a total of two. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. These improvements have been identified as required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements. Amended DO, pp. B-19 to B-21. Amended DO Condition H.4 states: Sarasota County acknowledges that with the construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new pm, peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless Funding Commitments for the improvement(s) required to maintain the adopted [LOS] have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOS]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Sarasota County acknowledges that with construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new p.m. peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in the [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless the Funding Commitments for the improvement(s) required to maintain the adopted [LOS](s) have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOSs]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Amended DO, pp. B-22 to B-23. Amended DO Condition H.4.c identifies 21 intersections and one road segment (I-75 southbound from University Parkway to Fruitville Road) that shall be monitored during the capacity reservation period. Condition H.4.c provides: If in the Annual Traffic Monitoring Report, the [LOS] on any of the intersections or intersection approaches fall [sic] below the adopted [LOS], no further site and development plan approval shall be issued unless the required improvement(s) are made by the [Intervenors], or Funding Commitments for the improvement(s) have been provided by the [Intervenors], another private person, or a responsible entity. . . . Amended DO Condition H.4.c identifies, by road segment, the number of equivalent p.m. peak hour trips to be reserved during that period. The Amended DO defines the capacity reservation period as the period commencing with the effective date of the Amended DO and ending with the earlier of December 31, 2009, or the point at which cumulative SIPOC development, for which development orders have been issued, generates more than 6405 gross p.m. peak hour trip ends or more than 3795 net new p.m. peak hour trip ends. Amended DO Condition H.5 requires Intervenors to establish an annual traffic monitoring program, which is "to monitor the cumulative impacts of the development on the roadways, intersections, and intersection approaches in the traffic impact area." This report is also used for traffic impact and concurrency evaluation purposes for any SIPOC development submitted to Sarasota County after the expiration of the Facility Reservation Period. Amended DO, p. B-26. Amended DO Condition H.6 provides: Development Order applications, including Final Development Order applications, for any portion of the development submitted during the annual concurrency evaluation period in effect for a given monitoring report, shall not be approved if the annual concurrency evaluation contained in that report indicates that traffic resulting from the approval of said Development Order will impact any road, intersection, or intersection approach in the traffic impact area that is operating (or projected to operate) below the adopted [LOS] for that facility. Notwithstanding the above, a Development Order application may be approved if one of the following mitigative actions, or both in combination, are committed to by the [Intervenors] (as a condition of approval for that Development Order), or, by another responsible entity: Other traffic impact reduction measures are implemented, including but not limited to transportation system management (TSM) strategies, intended to eliminate the impact of the SIPOC development traffic on the deficiently operating facility(ies) . . . [or] Funding Commitments, as defined in Conditions A.11.a.i-iii, are provided for the improvement(s) necessary to eliminate the [LOS] deficiency on the road(s) and/or intersection(s) by the SIPOC DRI development. Amended DO, p. B-27. Amended DO Condition A.11 defines "Funding Commitments" as follows: "Funding Commitments" shall mean the fulfillment of an action necessary to ensure the completion of any road or intersection improvement required by this [Amended DO] or identified in any subsequent Annual Traffic Monitoring Report prior to the time the impacts from the development occur. These actions include one or any combination of the following: The provision of a binding commitment by a private person or responsible entity . . . for the design, engineering, and actual construction of the improvement to be completed when the improvement is identified as being necessary in the approved Annual Traffic Monitoring Report as required in this [Amended DO]; or A commitment for actual construction and completion of the improvement pursuant to an approved Developer Agreement; or For the purpose of reviewing a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement in the current i.e., first year of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or The placement of the construction phase for an improvement in the current i.e., first year of Manatee County's adopted Capital Improvement Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of Manatee County; or The placement of the construction phase for an improvement in the current i.e., first year of the [DOT]'s adopted 5-Year Work Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of [DOT]. Amended DO, p. B-3. Funding Amended DO Condition A.11.IV.iv adds: For the purposes of reviewing a development order that is not a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement within the first five years of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or, The placement of the construction phase for an improvement within the first five years of Manatee County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Manatee County; or, The placement of the construction phase for an improvement within the first five years of the Florida Department of Transportation's . . . adopted 5-Year Work Program for roads and intersections under the jurisdiction of [the Florida Department of Transportation]. Amended DO, pp. B-3 to B-4. By Ordinance No. 2007-64, Sarasota County adopted the Plan Amendments changing the FLUM designations on SIPOC. After DCA found the Plan Amendments not in compliance, by Ordinance No. 2008-33, Sarasota County adopted the Remedial Plan Amendments. The procedural history of the Plan Amendments and Remedial Plan Amendments is set forth in the Preliminary Statement and incorporated by reference. It is important to note that the Cumulative Plan Amendments apply exclusively to SIPOC. The Remedial Plan Amendments add a new paragraph to the Transportation chapter of the Sarasota County comprehensive plan. With the existing, unchanged language in the first paragraph and the new language in the second paragraph, this part of the Transportation chapter now reads: Although the [LOS] standard . . . provides an overall goal toward which the County can strive, the adoption of a[n LOS] as high as "C" peak hour, based on a 100th highest hour design criteria, for constrained and backlogged roadways would not be environmentally or financially feasible. Constrained County roadways are defined as exhibiting a[n LOS] lower than the adopted standard and not being able to attain the adopted standard because prohibitive costs or environmental limitations prevent the construction of at least two additional through lanes. Backlogged County roadways are defined as roadways operating below the adopted standard which do not have prohibitive financial or environmental constraints but are not scheduled for major capacity improvement in the County's Five Year Schedule of Capital Improvements. Thus, the LOS for constrained roadways, i.e. prohibited due to physical or other policy limitations or backlogged roadways, i.e. currently un-funded in the 5-Year Schedule of Capital Improvements, is to maintain the current [LOS] with minimum degradation. Between U.S. 301 and I-75, University Parkway lies along the Manatee/Sarasota County line. The generalized [LOS] data of Table 6-2 shows University Parkway between U.S. 301 and I-75 to have been operating at . . . LOS D in 2003. University Parkway has been constructed as a six-lane divided arterial roadway and is not planned to be widened to include additional general purpose lanes. Also, University Parkway has an adopted LOS "D" for purpose of evaluating transportation concurrency in Manatee County and absent any indication to the contrary would have an adopted LOS "C" for Sarasota County concurrency purposes. To resolve this discrepancy, to acknowledge current operating conditions, and based on the interlocal agreement with Manatee County regarding access control and maintenance responsibilities for University Parkway, Sarasota County considers the adopted LOS on University Parkway to be "D" for evaluating transportation concurrency. Therefore, University Parkway has been included in "Table 6-5: Designated Backlogged and Constrained Roadways in Sarasota County" as constrained at LOS D. Ordinance No. 2008-33, Section 2. Presumably, the "current conditions" on University Parkway to which the above-cited language refers is to 2008 because, as noted in the following section, the 2006 directional peak hour volumes of the University Parkway segments west of I-75 were all LOS B, except for five such segments at LOS C. In any event, the Remedial Plan Amendments add seven segments of University Parkway from I-75 to a point west of the SIPOC, but east of U.S. Route 301, as "constrained" with an LOS D. Ordinance No. 2008-33, Section 3. The Remedial Plan Amendments provide that the SIPOC is in Special Planning Area #1--a new FLUM designation. They add: The [SIPOC DRI] Substantial Deviation Application for Development Approval (ADA) serves as supporting data and analysis for the area identified on the . . . FLUM as the SIPOC DRI--Special Planning Area 1. As required, the SIPOC DRI ADA is a comprehensive analysis of the suitability of the area for the development as well as the proposed impacts of the project. This DRI analysis can be used by Sarasota County to guide the timing, location, type and amount of future development. Thus, the Application for Development Approval, sufficiency responses and [Amended DO] provide supporting data and analysis for the land use designation on the FLUM. Ordinance No. 2008-33, Section 4. The Remedial Plan Amendments amend the future land use element of the Sarasota County comprehensive plan to incorporate the above-described density and intensity limits, as well as hotel rooms and dwelling units, identified above in the Amended DO. Ordinance No. 2008-33, Section 6. The Remedial Plan Amendments identify a new Five-Year Schedule of Capital Improvements, Table 10-3, which is obviously limited to SIPOC. For traffic circulation, the new capital improvement schedule provides (all costs are in millions'): Project Pre-2008 2008 2009 2010 2011 Future Total Add DeSoto Rd. 2.27 2.5 0.27 0.27 0.15 0 5.5 Add N. Cattle man Rd.- 5.0 Richardson Rd. 0 5.0 21.0 6.3 2.5 39.0 Add University Pkwy./Honore 0 0 0 0 0 0 0 Ave. Inter- section Add University Pkwy. Northbound 0 0 0 0 0 0 0 Off-ramp [to I-75] Ordinance No. 2008-33, Section 9. The Remedial Plan Amendments further identify Special Planning Area 1 as follows: Special Planning Area 1 is the . . . SIPOC DRI. The Substantial Deviation Application for Development Approval (ADA) provides data and analysis regarding its significant and adverse impacts to local and regional roadways. [Intervenors], in coordination with Sarasota County, ha[ve] committed to provide funding and right-of-way as needed from the DRI property to mitigate for the improvements required to maintain the adopted [LOS] on area roadways . . . resulting from the impacts of the SIPOC DRI. The required improvements to the roadway system . . . are provided in the [Amended DO] and summarized as follows: Improvements to the roadway included in the County's Five-Year Capital Improvements Program (CIP) are as follows: North Cattlemen Road from Richardson Road to University Parkway. This project has been programmed in the CIP in the amount of $39,907,103 . . .. DeSoto Road from Harold Avenue to North Cattlemen Road. This project has been programmed in the CIP in the amount of $5,462,227 . . .. Improvements to the intersection of University Parkway and Honore Avenue. This project will be funded by [Intervenors]. The current construction estimate is $2,250,000 . . .. Improvements to the northbound exit ramp of I-75. This project will be funded by [Intervenors]. The current construction estimate is $2,000,000 . . .. A public transit transfer facility station will be designed, permitted and constructed by [Intervenors] and will be designed to accommodate a minimum of four buses and will be constructed at such time as Sarasota County Area Transit establishes service to the development. The estimated cost is $300,000 . . .. Ordinance No. 2008-33, Section 10. The Remedial Plan Amendments become effective when DCA enters a final order finding them to be in compliance. Ordinance No. 2008-33, Section 14. Whether Adoption of LOS D for University Parkway Is Supported by Data and Analysis The present record is devoid of evidence that any of these segments of University Parkway are constrained. Nothing in the record suggests that the constraints of prohibitive costs or significant natural resources preclude the widening of University Parkway. By definition, these segments of University Parkway were backlogged, prior to the reduction in their LOS standard to D, as they were operating below their adopted LOS standard of C and were omitted from the five-year capital improvement schedule for capacity enhancement sufficient to restore a C LOS standard. Backlogged segments remain deficient and are to be maintained so as to minimize further degradation. Of course, by reducing the LOS standard to the actual LOS--D--Sarasota County relieves these University Parkway segments of their backlogged status. Instead, the clear intent of the county was to reduce the LOS standard of these segments, not to treat them and their failure to attain LOS C as special cases. The second of the cited paragraphs above essentially designates these segments of University Parkway as LOS D, not because they are constrained or were (prior to the new designation) backlogged, but because: 1) Manatee County designates the same segments as LOS D, 2) the segments are operating at LOS D, and 3) Manatee County is unlikely to share the cost of enhancing the capacity of these segments when they are operating at their (Manatee-County) adopted LOS standard. Sarasota County's proposed recommended order, at paragraph 19, candidly concedes these points. Without regard to Sarasota County's confusing attempt to designate the University Parkway segments as constrained or backlogged, the three cited reasons for lowering the LOS standard to D for these segments of University Parkway are data and analysis supporting the action taken by Sarasota County. Petitioner has failed to prove to the exclusion of fair debate that the designation of the affected University Parkway segments as LOS D is not consistent with the criterion of supporting data and analysis. Whether Supporting Traffic Data Are Appropriate and Traffic Data Were Collected and Applied in a Professionally Acceptable Manner Kimley-Horn and Associates, Inc., (KH) performed the traffic analysis in connection with the Amended DO and Cumulative Plan Amendments. In November 2005, KH prepared a Transportation Methodology Statement (TMS) for use in conjunction with the SIPOC Phase II DRI Substantial Deviation (from the DO). The TMS briefly describes Phase II of the SIPOC development. The TMS slightly overstates, by percentage, retail uses by 120,000 square feet (using 1,800,000 square feet, rather than 1,680,000 square feet) and substantially understates, by percentage, office uses by 120,000 square feet (using 100,000 square feet, rather than 220,000 square feet), but, obviously, the total of the two uses is the same as the total stated in the Amended DO. The TMS states that KH will use the trip generation rates published by the Institute of Transportation Engineers, Trip Generation, 7th Edition, 2003. The TMS notes that hotel trips require a different source due to their exclusion from Trip Generation. The TMS states that KH will determine trip "general trip distribution of project traffic" by "application of the Florida Standard Urban Transportation Model Structure" (FSUTMS), which is a transportation planning model. The TMS states that KH will use FSUTMS for "project distribution" and "general assignment of project traffic to the roadway network." Trips are first distributed between attractor land uses and producer land uses and then are assigned to specific facilities. Thus, it is necessary to distribute trips between SIPOC and various offsite locations and, using this information, to assign traffic to the roadway network in the vicinity of the attractors. The TMS adds: In addition to [FSUTMS], existing traffic patterns adjacent to the project site, including the location of production- and attraction-based land uses, will be used as supplement data to estimate project traffic assignment. A copy of the distribution and electronic files of the input files to be used in this model will be provided in the analysis report to the appropriate review agencies. The TMS states that, in distributing project traffic, KH will use the existing roadway network plus committed improvements in the first three years of Manatee County's current capital improvement program, Sarasota County's current capital improvement program, and Florida Department of Transportation's (DOT's) Work Program. The TMS states that KH will obtain the necessary socio-economic projections for the buildout year of 2009 from the Sarasota/Manatee Area Transportation Study and will supplement these data to include certain other approved DRIs, which are listed. The TMS states that the analysis report will summarize the socio-economic adjustments. The TMS states that KH will estimate internal capture and pass-by capture of project traffic based on the review of FSUTMS in Trip Generation, 2nd Edition, June 2004--as well as other ITE-related documents and engineering judgment applied to the characteristics of SIPOC, Phase II. Internal capture is a function of mixed-use developments, such as SIPOC, in which persons using the retail, office, or residential components of the single development remain within the development, rather than enter the roadways surrounding the development. Pass-by capture describes the function of a development interrupting a trip on the surrounding roadway system and later releasing the trip back onto the surrounding roadway system. The TMS adds that the total pass-by capture trips will be estimated for the retail part of SIPOC, Phase II, and will be limited to 10 percent of the future background traffic estimates adjacent to the project site. The TMS adds that KH will document all assumptions and applied procedures in the analysis report. The resulting reduction in internal capture and pass-by capture trips will, according to the TMS, produce net, new trips, which KH will use to identify the transportation impact study area. The TMS states that KH will review the impacts of project traffic on the adjacent roadway network following the requirements of Section 380.06, Florida Statutes, and Florida Administrative Code Rule 9J-2.045, which are consistent with the rules of DCA. Relying on the procedures used in the Phase I transportation analysis, which had been recently approved, KH will then identify the study area as "all roadway segments for which SIPOC net, new project traffic will consume 5.0 percent or greater of the . . . LOS C directional, peak-hour service volume of each affected roadway link located within Sarasota County, including University Parkway and I-75." For roadways in Manatee County, excluding I-75, the LOS will be D. The TMS states that peak-hour service volumes will be estimated based on the most recent information available from DOT and the Transportation Research Board, Highway Capacity Manual, 2000 Edition. In particular, the TMS notes that KH will use four- lane, divided capacity for North Cattlemen Road from University Parkway to DeSoto Road and two-lane, divided capacity for North Cattlemen Road from DeSoto Road to Richardson Road and DeSoto Road from Honore Avenue to North Cattlemen Road. The TMS adds that KH will use six-lane, divided capacity for University Parkway from I-75 to Lakewood Ranch Boulevard to the east and the proposed ramp improvements to the University Parkway/I-75 interchange. The TMS identifies the LOS standards of various road segments surrounding SIPOC, including LOS D for University Parkway from U.S. Route 301 to Lakewood Ranch Boulevard. (University Parkway east of I-75 is entirely in Manatee County.) The TMS identifies the analysis period as the p.m., peak season, peak hour for both existing and future conditions. For the existing condition, Intervenors shall obtain recent traffic count data. The TMS notes that KH will forecast future nondevelopment (background) traffic for the buildout year of 2009, using the results of the FSUTMS model, forecasted traffic projections from public agencies, and actual historical traffic counts from the study area. Comparing the FSUTMS outputs for 2005 and 2009, KH will determine the appropriate growth rates for specific roadways within the study area. By applying those growth rates to the existing traffic data, KH will determine future background traffic volumes. The TMS states that the analysis report will contain complete documentation of all assumptions and applied procedures. The TMS states that KH will perform roadway link capacity analysis for all regionally significant roadways and any subregional roadways in the study network that provide primary access to SIPOC. The TMS identifies the sources of procedures for this analysis and assures that the analysis report will contain electronic files with the results of the roadway link capacity analysis. The TMS states that KH will assess project traffic for potential improvements where it contributes at least five percent of the appropriate LOS peak hour directional service volume of a regional roadway in the transportation impact study area. KH will identify improvements only when the roadway is expected to operate below its adopted LOS peak hour service volume. The analysis report will identify improvements attributed to SIPOC only if project traffic consumes at least five percent of the adopted LOS peak hour service volume or the "critical movements of the intersections located at the endpoints of an impacted roadway segment." The TMS states that KH will perform similar analyses of intersections in terms of their LOSs and need for improvements when operating below their adopted LOS standards. KH circulated the TMS among various agencies, including Sarasota County, DOT, and the Southwest Florida Regional Planning Council (RPC). None of these agencies offered any criticism of the proposed methodology. As part of their application for development approval that led to the Amended DO, Intervenors filed a Substantial Deviation from the SIPOC DRI. Part V of this document is Public Facilities, and Section A of Part V is Transportation. This Transportation Substantial Deviation document shall be referred to as the "TSD." At the time of the preparation of the TSD, Phase I of SIPOC was under construction, so KH combined the land uses and their associated traffic for both phases for the analysis contained in the TSD. KH based its analysis on 2009 projections because that is the year of buildout of Phase II. The TSD states that KH used current policies of Sarasota County and RPC to identify the transportation study area, which comprises the regionally significant roadway links, intersections, and interchanges on which Phases I and II project trips associated with SIPOC consume at least five percent of the adopted LOS. The TSD identifies the adopted LOS as C for each affected roadway link in Sarasota County, including University Parkway west of I-75 and I-75 in Sarasota and Manatee counties, and D for roadways in Manatee County. Evidently, at the time of the preparation of this part of the TSD, Sarasota County had not yet identified the need to lower the LOS for University Parkway to D. However, TSD Table 5.A.2 reports that the University Parkway segments west of I-75 have an adopted LOS D. University Parkway would obviously be in the transportation study area regardless whether KH has used a LOS standard of C or D for its segments west of I-75. The TSD states that KH used the existing roadways plus roadway improvements funded for construction for the first three years in the capital improvement programs of Sarasota and Manatee counties and the DOT Work Program, except that KH used five years of the DOT Work Program for construction of I-75 improvements. The TSD states that KH used ITE's, Trip Generation, 7th Edition (2003) to determine that SIPOC, through Phase II, would generate 68,894 daily trip ends and 6405 trip ends in the p.m., peak hour, consisting of 3148 inbound and 3257 outbound, as well as 2158 trip ends in the a.m. peak hour, consisting of 1143 inbound and 1015 outbound. The TSD states that KH used an internal capture rate of 33 percent and a pass-by capture rate of less than 10 percent of future background traffic. Subtracting the internal capture and pass-by capture rates from the total gross trips, TSD Table 5.A.5 reports that the total, net, new external project trips is 38,120 daily, including 1708 in and 1817 out during p.m. peak hour and 713 in and 585 out during a.m. peak hour. The TSD describes the process by which KH calculated 2009 total traffic, which consists of SIPOC traffic plus background (i.e., nonSIPOC) traffic. KH inputted into FSUTMS socioeconomic data provided by the Sarasota/Manatee County Metropolitan Planning Organization (MPO), supplemented by data from other approved DRIs in the area. The TSD details the process by which KH isolated the effects of SIPOC in projecting background traffic. For project traffic, the TSD states that KH used FSUTMS output to distribute trips and, with "minor refinements based upon existing and proposed attractive-type land uses near the project site," to develop roadway assignment percentages. TSD, p. 12. TSD Table 5.A.1 reports the LOS service volumes for road segments in the vicinity of SIPOC, the projected traffic assignment (expressed as a percentage of the LOS service volume) assigned to each road segment, and an indication whether the five-percent threshold has been met, so as to require the inclusion of the road segment in the transportation study area. The TSD states that KH also applied the percentages to the trip generation estimates, with an adjustment for background traffic, to determine projected traffic volumes through Phase II. A revised version of this table is in the Third Sufficiency Response. TSD Table 5.A.2 shows service volumes for existing roadways based on their adopted LOSs. For instance, all depicted University Parkway segments west of I-75 bear an LOS D, which produces a service volume of 2790. The service volume of 2790 is for peak hour conditions. Using p.m. peak hour traffic counts conducted by KH, Table 5.A.3 indicates the actual p.m. peak hour roadway volumes for 2006, divided by direction. For the University Parkway segments west of I-75, the existing volumes are all at least 400 trips below 2790, so as to earn LOS Bs for all segments, except five, which are at LOS C. In general, Table 5.A.3 reports that all road segments in the study area were within their adopted LOS standards for 2006, and Table 5.A.4 reports that all intersections in the study area were within their adopted LOS standards for 2006, as well. In projecting 2009 traffic volumes, the TSD describes the process undertaken by KH to determine the volume of Honore Avenue traffic that would be diverted to North Cattlemen Road, once the latter facility is constructed. KH also assigned a minimal amount of traffic to DeSoto Road between Honore Avenue and North Cattlemen Road to account for the use of this new facility by background traffic. For project traffic, KH made "minor adjustments," of the type noted above, in assigning traffic to road segments in the study area. Projecting 2009 conditions, TSD Table 5.A.6 shows the directional p.m. peak hour traffic volumes for the project, background, and total. For instance, eastbound and westbound, the University Parkway segment from North Cattlemen Road/Copper Creek Boulevard west to Honore Avenue will have project volumes of 436 and 463 trips, background volumes of 2725 and 2672 trips, and total volumes of 3161 and 3135 trips, which would exceed the LOS D volume of 2790 trips reported above in TSD Table 5.A.2. TSD Table 5.A.7 reports, by road segment, the ratio of project traffic to total traffic. On the segment discussed immediately above, the project will constitute about 14 percent of peak hour total traffic in both directions. On other segments, such as the North Cattlemen Road and DeSoto Road segments that will primarily serve SIPOC, peak hour project traffic will be about 80-90 percent of peak hour total traffic. The TSD states that KH identified a road segment as critical and in need of further analysis if the 2009 projections revealed that it was operating below its adopted LOS standard and project traffic consumed at least five percent of its adopted peak-hour directional LOS volume TSD Table 5.A.8 reports the result of the roadway analysis, which, with "detailed arterial analysis," finds all segments, including the above-mentioned Honore/Cooper Creek segment of University Parkway, to be operating in 2009 at their adopted LOS or better. However, despite the application of "detailed arterial analysis," Table 5.A.8 designates five of the University Parkway segments, including the Honore/Cooper Creek segment, and three segments of Honore Avenue as critical links. Each of these eight segments was designated a critical link in both directions. TSD Table 5.A.9 identifies the intersections in the study area and projects that five of them will, by 2009, fall below their adopted LOS standard. Table 5.A.9 includes recommended improvements to restore LOSs to adopted levels or better. For the intersections at Honore Avenue and DeSoto Road and North Cattlemen Road and DeSoto Road, the improvement is to add signals. For the intersections at University Parkway and Honore Avenue and University Parkway and North Cattlemen/Cooper Creek, the improvements are to add two new turn lanes at each intersection. For the intersection at University Parkway and the I-75 east ramps, the improvement is to construct a new turn or ramp lane. In connection with the DRI-approval process, Sarasota County and DOT issued comments and questions, which prompted Intervenors' engineering firm to file at least three sufficiency reports. In the First Sufficiency Report, the RPC noted that a four-year planning horizon (2005-09) was a relatively short timeframe for using FSUTMS, so KH needed to check outputs for "reasonableness." In the Second Sufficiency Report, KH had to justify to Sarasota County KH's detailed assumptions and conclusions, such as its internal capture rate of 33 percent for am peak hour and its refusal to use an annual growth rate in traffic on University Parkway east of I-75 of 15 percent (as suggested by the FSUTMS output). KH also had to respond to DOT comments by adding to a map trip distribution percentages to certain road segments and correcting some LOS levels used in certain of the TSD tables. In the Third Sufficiency Response Table 1, KH identified the recommended transportation improvements to be funded by Intervenors as follows: Roadway Improvement Timeframe Honore Ave. & Construct north- Phase I DeSoto Rd. bound (NB) right- turn lane. University Pkwy. Construct EB right- Phase I & W. Project Drive turn lane. University Pkwy. Construct 2 NB left- Phase I & N. Cattlemen Rd. turn lanes, 2 NB through lanes, 2 NB right-turn lanes, 1 EB right-turn lane, and 2 WB left-turn lanes. N. Cattlemen Rd. Construct 4-lane Phase I divided road from University Pkwy to DeSoto Rd. DeSoto Rd. Construct 2-lane Phase I divided road from Honore Ave. to N. Cattlemen Rd. University Pkwy. Construct 2nd NB left- Phase II & Honore Ave. turn lane and 2nd WB left-turn lane. Con- vert NB right-turn lane to through lane and construct new NB right-turn lane. University Pkwy. & Convert SB right-turn Phase II Cooper Creek Blvd./ lane to through lane N. Cattlemen Rd. and construct new SB right-turn lane. University Pkwy. Construct 3rd NB Phase II & I-75 E ramps left-turn lane. Honore Ave. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Construct 2-lane Phase II divided or possibly 4-lane divided from DeSoto Rd. to Richardson Rd. The reviewing agencies ultimately approved the KH transportation analysis, but Petitioner claims that the transportation analysis was not professionally acceptable. Even Petitioner's witnesses offered no objection to the capture rates and traffic volumes used by KH. The thrust of Petitioner's objections to the traffic analysis is not to the inputs or model, but to the manual adjustments that KH made to the model outputs when assigning traffic to specific road segments. Some of these adjustments resulted in the removal of certain road segments from the transportation study area and thus from further analysis of the adverse impacts from SIPOC. The KH employee responsible for this project, Robert Agrusa, has 23 years' experience performing traffic studies and 20 years' experience using FSUTMS. Mr. Agrusa has worked in the Sarasota area nearly exclusively for over 15 years and has worked on the traffic impacts of DRIs. FSUTMS is a model whose original purpose was to assist long-range transportation planning, thus the comment by the RPC reviewer for the need to use care in using FSUTMS for the relatively short timeframe involved in this exercise. The model's sensitivity is limited as to attractive land uses near the subject project. For instance, the model fails to differentiate between a convenience store and a regional shopping mall; both are simply retail land uses. The engineer using FSUTMS for the purpose for which it was used in this planning exercise must examine the outputs carefully, compare them to existing and future land uses, and adjust the model- generated trip assignments based on his or her professional judgment. According to a Sarasota County transportation engineer, adjustments to FSUTMS output are more common in the I-75 corridor where the model's traffic analysis zones are less precise. Other authorities likewise support manual adjustments to model outputs. Among the manual adjustments described by Mr. Agrusa was an increase in the number of trips absorbed by large residential areas west of SIPOC, both north and south of University Parkway. These areas include 3000-4000 dwelling units that, in his professional judgment, were inadequately weighed by FSUTMS in distributing trips. For similar reasons, Mr. Agrusa made a similar adjustment in assignments in the area south of University Parkway and north of Fruitville Road, where even more dwelling units are located. Another manual adjustment described by Mr. Agrusa illustrates well the issue raised by Petitioner. Mr. Agrusa increased the trips on I-75, north and south of University Parkway, to reflect the regional draw of SIPOC, especially its retail uses. No transportation engineer in this case disagrees that SIPOC is a regional draw. An increase in I-75 trips means a corresponding decrease of trips on University Parkway, Honore Avenue, and North Cattlemen Road. However, the magnitude of such changes was typically limited to 2-3 percentage points, and each percentage point of net new trips is only 40 two-way trips or 80 one-way trips. As Petitioner contends, small changes can result in large effects. Mr. Agrusa raised the percentage of project trips on I-75 south of University Parkway from nine percent to 12 percent. As already noted, this would lighten the projected traffic on other segments, especially North Cattlemen Road and Honore Avenue. By raising the percentage only to 12, though, Mr. Agrusa did not cause the burdened interstate segment to have to be included in the study area because, at 12 percent, the project contributed 4.99 percent of this segment's volume. Had Mr. Agrusa raised the percentage to 12.5 percent, the five percent threshold would have been met, and this segment of I-75 would have had to have been included in the study area. But Mr. Agrusa testified that he did not restrict this increase to lower the volumes on road segments already in the study area and raise it as far as possible without adding the increasingly burdened segment to the study area; absent evidence of some impropriety in this adjustment, it is impossible to find that it was not professionally acceptable, especially in the absence of objection from DOT as to exclusion of I-75 from the study area. All transportation engineers, including Petitioner's witness, agreed that a manual adjustment was indicated to increase the assignment of trips to I-75; they disagreed only as to the extent of the increase. Projecting traffic volumes even for just four years is necessarily a rough-hewn process, which, in this case, did not even assign an input to the cost of fuel and its effect on traffic volumes. The magnitude of the changes for which Petitioner contends would introduce into this process more precision than the process can support. The projection is for only four years, so, with or without manual adjustments to model outputs, the potential for error is reduced when compared to longer planning horizons. Given the detailed methodology and analytic exercise described above, the multiple-agency review, and the absence of affirmative evidence of bad faith, KH collected appropriate data in a professionally acceptable manner and applied the data, in a professionally acceptable manner, to identify the study area, the impacted road segments and intersections, and the improvements necessary to maintain adopted LOS standards on these segments and intersections. Petitioner has failed to prove to the exclusion of fair debate that the data and analysis regarding the Cumulative Amendments are inconsistent with the criteria that the date be appropriate to the plan provisions and that the data be collected and applied in a professionally acceptable manner. Whether the Identified Transportation Facilities Are Financially Feasible and Properly Scheduled in the Capital Improvement Program As of the date of the final hearing, Intervenors had already constructed all of the Phase I transportation improvements (Amended DO Conditions H.1.a-d) and the following Phase II transportation improvements: the roundabout at North Cattlemen Road and DeSoto Road (Amended DO Condition H.2.e), the roundabout at North Cattlemen Road and northern Access Drive (Amended DO Condition H.2.i), and the roundabout at North Cattlemen Road and the southern Access Drive (Amended DO Condition H.2.j). As of the date of the final hearing, Intervenors had almost completed construction of the signalization of Honore Avenue and DeSoto Road (Amended DO Condition H.2.d). As of the date of the final hearing, a third party had completed construction of intersection improvements at Fruitville Road and Cattlemen Road (Amended DO Condition H.2.g). As of the date of the final hearing, Intervenors had delivered to Sarasota County a letter of credit or performance bond of $33 million--sufficient to pay for the construction of North Cattlemen Road from DeSoto Road to Richardson (Amended DO Condition H.2.f) and the North Access Drive (Amended DO Condition H.2.h), for which the combined cost is estimated to be $29,517,244, and the construction of the intersection improvements at University Parkway at Cooper Creek/North Cattlemen (Amended DO Condition H.2.b), for which the cost is estimated to be $3,100,000. This leaves only two transportation projects from the Amended DO Condition H for Intervenors to complete: construction of the intersection improvements at University Parkway and Honore Avenue (Amended DO Condition H.2.a), for which the cost is estimated to be $2,250,000, and construction of the east ramp improvements at I-75 and University Parkway (Amended DO Condition H.2.c), for which the cost is estimated to be $2,000,000. Intervenors secured its undertaking to pay for these remaining transportation improvements by providing Sarasota County with financial assurance--in the form of new capital contribution agreements--adequate for these two improvements plus the construction of the transit station, but Intervenors entered into these agreements after the adoption of the Cumulative Plan Amendments. Based on the KH traffic analysis, which has not been shown to have been unreliable or unprofessional, these transportation improvements will offset the impacts of SIPOC, Phases I and II, sufficient to avoid a violation of any adopted LOS standard for any road segment or intersection. If, for some reason, the improvements were not to be adequate, the monitoring program in the Amended DO will ensure that development orders will be suspended, pursuant to the conditions contained in the Amended DO, the reference in the Remedial Plan Amendments to Intervenors' financial undertakings in the Amended DO (thus incorporating them into the comprehensive plan), and concurrency provisions in the Sarasota County comprehensive plan, unless and until these traffic impacts are offset by transportation improvements sufficient to restore service volumes to the adopted LOS standards. Additionally, the Remedial Plan Amendments contain a five-year schedule of capital improvements that adequately describes the relevant transportation improvements and the years of funding. The KH traffic analysis drives the finding that the transportation improvements already completed and to be undertaken by Intervenors will prevent any road segment or intersection from falling below the adopted LOS standard due to impacts from SIPOC traffic. As a backup, the Amended DO provides for monitoring of traffic volumes and suspends development if and when SIPOC traffic causes any road segment or intersection to fall below its adopted LOS standard. In turn, these findings inform findings as to the consistency of the undertaken capital improvements with the criteria of financial feasibility and scheduling capital improvements. Petitioner has failed to prove to the exclusion of fair debate that the Cumulative Plan Amendments are not consistent with the criteria of financial feasibility and scheduling capital improvements.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding the Cumulative Plan Amendments to be in compliance. DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2008. COPIES FURNISHED: Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Christopher Torres Greenberg Traurig, PA 625 East Twiggs Street, Suite 100 Tampa, Florida 33602 Stephen E. Demarsh Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236-6808 Alan W. Roddy Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Martha Harrell Chumbler Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2160 Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
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) (C) 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. FINAL ORDER NO. DCA 10-GM-288 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 gcll day ot Ta nuasty 20 // e SA Av. Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Linda Shelley, Esquire Fowler White Boggs PA PO Box 11240 Tallahassee, Florida 32302-3240 lshelley@fowlerwhite.com Jeffery A. Boone, Esquire 1001 Avenida Del Circo PO Box 1596 Venice, Florida 34284-1596 jboone@boone-law.com Lynette Norr Assistant General Counsel Department of Community Affairs Lynette.norr@dca.state.fl.us
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 =================================================================
