The Issue Whether Respondent, Department of Transportation ("Respondent"), has demonstrated that Petitioner, Frank C. Kunnen, Jr., d/b/a U.S. 19 Commerce Center's ("Petitioner"), right-out driveway to U.S. Highway 19 will present a safety and operational problem following Respondent's reconstruction of Highway 19. Whether Petitioner's access to the state highway system will be reasonable if Petitioner's existing right-out driveway is closed. Whether Respondent is legally entitled to administratively close Petitioner's driveway, pursuant to Rule 14-96.011, Florida Administrative Code, and applicable Florida Statutes.
Findings Of Fact Petitioner is the owner of real property located within the city limits of Clearwater, in Pinellas County, Florida, which property abuts U.S. Highway 19 (State Road 55). It has a right-in and right-out driveway connection to U.S. Highway 19. Petitioner's current right-in, right-out driveway does not create a safety or operational problem with the existing configuration of U.S. Highway 19. Respondent is an agency of the State of Florida created pursuant to Chapter 20, Florida Statutes. Respondent regulates access to the state highway system. Respondent initially cited Rule 14-96.011, Florida Administrative Code, in the Notice as authority for the intended agency action. This Rule pertains to closure or modification of permitted driveways. At hearing on March 20, it was discovered that Respondent had intended to cite Rule 14-96.012, Florida Administrative Code, which pertains to closure or modification of unpermitted driveways that had been in existence since before July 1, 1988, the effective date of the State Highway System Access Management Act. The Rule refers to these driveways as "grandfathered." As of March 20, Respondent was not aware that Petitioner's driveway might have been permitted. In order to provide Petitioner all due process to which he was entitled, Respondent requested that the hearing be continued. After reviewing its files, Respondent indicated to Petitioner on June 28, 2001, that Respondent would be requesting an additional continuance to conduct an engineering study pursuant to Rule 14- 96.011, Florida Administrative Code.¹ Petitioner agreed to both continuances. The study was dated August 20, 2001, and was delivered to Petitioner's counsel just after that date. This study was presented as Respondent's Exhibit 5 at the resumption of the hearing on September 20, 2001. The Study sets out the essential safety and operational bases for Respondent's agency action in this case and was signed and sealed by a professional engineer registered in the State of Florida. Prior to the reconvened hearing, Petitioner did not seek to depose the author of the engineering study nor did he request documents utilized in creating the study. Petitioner decided to wait until the hearing and make a series of objections to the study's admissibility. Prior to and after the study was admitted into evidence, Petitioner's counsel conducted extensive cross-examination of the engineer who signed and sealed the study, Vibert Griffith, P.E., and his assistant in the creation of the study, Julian Parsons. Petitioner did not present any evidence of prejudice resulting from the timing of the creation of the study. Any prejudice which may be presumed was cured by Respondent's requesting a continuance specifically to search its records for evidence of a permit; Respondent's requesting another continuance to create that study; Petitioner's agreeing to both continuances; and Respondent's producing the study approximately one month prior to hearing. This gave Petitioner time to conduct discovery regarding the study, not to mention sufficient time to prepare for the hearing itself. The Notice did not state whether mediation was available in this case. However, the lack of mention of mediation in the Notice was of no prejudice to Petitioner in light of the fact that that Petitioner proposed several alternative driveway designs to Respondent, and that these alternatives had been closely studied and considered. Petitioner did not present any evidence that he had asked whether mediation was available or was denied an opportunity to mediate this case. Accordingly, any error in the lack of information regarding mediation in the Notice was harmless, and any prejudice was cured. Petitioner elicited testimony with respect to a third procedural point in this case. Rule 14-96.011(1)(e), Florida Administrative Code, states that if Respondent seeks to close a driveway, Respondent will offer to meet with the property owner or his representative on-site. As Petitioner's counsel stated during his opening remarks, however, there is a long history of litigation between Petitioner and Respondent, including two pervious mediations. Again, the unrebutted testimony at hearing was that over the last several years Respondent evaluated three alternative designs submitted by Petitioner for access to U.S. Highway 19. Petitioner did not present any evidence of prejudice in not being able to meet on-site with Respondent in this case. Any error in relation to this issue was harmless. U.S. Highway 19 runs north-south through Pinellas County, Florida and is a part of the Florida Intrastate Highway System. In the vicinity of Petitioner's property, U.S. Highway 19 has three lanes of traffic each for northbound and southbound traffic (total of six lanes). As part of the reconstruction of U.S. Highway 19, Respondent has plans to create "grade separated intersections" or "urban interchanges" at the cross street to the south and north of Petitioner's property. The cross street to the south is Drew Street, and the cross street to the north is Coachman Road. Also, just to the north of Petitioner's property, U.S. Highway 19 is elevated over railroad tracks, and will continue to be so elevated after reconstruction. In its reconstructed state, vehicles will reach mainline U.S. Highway 19 by a series of frontage roads and on and off ramps. Vehicles that stay on mainline U.S. Highway 19 will not have to stop for signals at intersections with cross streets because the mainline will travel over the cross streets. The effect of U.S. Highway reconstruction will be to create a more efficient transportation facility by improving safety and capacity. The overall improvements to U.S. Highway 19 are necessary. Although Respondent is closing Petitioner's right-out driveway to mainline U.S. Highway 19, Respondent is not acquiring any property from Petitioner. Accordingly, Respondent provided Petitioner with notice of the intended agency action and right to an administrative hearing (the "Notice"). Respondent's Proposal Respondent proposes, as part of its planned improvements to U.S. Highway 19, to provide Petitioner a right- in only entrance from a frontage road running adjacent to and parallel to U.S. Highway 19. Respondent also proposes to build a new two-way road, referred to as Access Road A, which runs north-south, parallel to U.S. Highway 19, intersects Drew Street, and from that point provides vehicles the option of traveling either north or south on mainline U.S. Highway 19, or east or west on Drew Street. Petitioner's northerly neighbor, a maintenance yard owned by Pinellas County, would also send all of its traffic, including large trucks and emergency vehicles, out Access Road A to Drew Street. Other properties, including several car dealerships, to the south of Petitioner's property would also have access to Access Road A. No other property owner, including Pinellas County, objected to Respondent's proposed access system. It is undisputed that Respondent has all of the right-of-way necessary to construct Access Road A to Petitioner's property line. During construction, the City of Clearwater will install a temporary traffic signal at the intersection of Access Road A and Drew Street. Based on a traffic study conducted by the Pinellas County MPO and endorsed by the City of Clearwater and Pinellas County, the traffic light will become permanent when construction is completed. Even if the temporary light is removed after construction, Access Road A will function properly for right turns onto Drew Street which will provide access to the northbound and southbound mainline lanes of U.S. Highway 19. This is true, even assuming that all of Petitioner's neighbors send all of their traffic out Access Road A. In addition, Petitioner's neighbors to the south have several alternate means of access to travel west on Drew Street and either north or south on U.S. Highway 19. Respondent is closing Petitioner's right-out driveway to U.S. Highway 19 because, post-construction, the driveway would be located on an on-ramp. The frontage road and on-ramp, as currently designed by Respondent, would prevent placement of a right-out driveway in such a location. It is Petitioner's position that Respondent could have designed the frontage road and on-ramp in front of Petitioner's property in such a way as to allow the safe operation of a right-out driveway in the approximate location of Petitioner's current right-out driveway. Petitioner's Proposal In support of his contention that Respondent could have designed a right-out driveway, Petitioner offered an aerial map and overlay (Petitioner's Exhibit 3), which purported to show that Respondent could have designed an on-ramp from Drew Street and an off-ramp to Coachman Road to the north in such a way as to allow Petitioner a right-out driveway. Petitioner's Exhibit 3 was a concept based upon what was referred to as the "Lochner Study" at hearing. The "Lochner Study" was a study performed by the engineering firm H. W. Lochner, and showed a right-in, right-out driveway from Petitioner's property onto a frontage road/on-ramp in approximately the same location as Petitioner's current driveway. In the past Petitioner had proposed other alternatives for access to U.S. Highway 19. Petitioner withdrew from consideration at this hearing all other alternative designs for a right-out driveway for Petitioner. The Lochner Study was undertaken with the specific purpose of determining whether needed improvements to U.S. Highway 19 could be safely constructed within right-of-way already owned by Respondent. The Lochner Study concluded that placing a driveway for Petitioner in the location shown in the study would provide "substandard operation and is very undesirable from a safety stand point." The primary reason for this conclusion was that the physical separation of northbound mainline U.S. Highway 19 and the frontage road ended south of the driveway's location. This lack of physical separation would allow vehicles on northbound mainline U.S. Highway 19 to cross over the frontage road and enter Petitioner's property, creating unsafe traffic movements. Petitioner's witnesses agreed that this lack of separation would be a safety problem. Petitioner's Exhibit 3, prepared and testified about by Reginald Mesimer, attempted to alleviate this admittedly unsafe aspect of the Lochner plan by extending the physical separator between northbound mainline U.S. Highway 19 and the frontage road/on-ramp to a point just beyond the location of where Petitioner's driveway would be. The area of physical separation is the "gore" area. In effect, this extension also would shift the beginning of the on-ramp to the point of Petitioner's driveway. Thus, the issue raised was whether the location of the on-ramp could be safely designed to co-exist with the location of the off-ramp for the next interchange at Coachman Road. The standards for determining whether this design is safe are set by the American Association for State Highway and Transportation Officials ("AASHTO"), who publish these standards in the "Green Book," known as the "Bible" of transportation engineers. In examining Petitioner's Exhibit 3, as well as the requirements of AASHTO submitted in this case, it is clear that the requirements for an on-ramp followed by an off-ramp are: (1) an acceleration area for the on-ramp; (2) a weaving area for vehicles going from the on-ramp to mainline, and for vehicles going from mainline to the off-ramp; (3) a deceleration area for the off-ramp, and (4) a queue area for vehicles at the terminus of the off-ramp. Petitioner's Exhibit 3 shows the start of the acceleration area for the on-ramp at the location of Petitioner's right-out driveway, which indicates that the on- ramp for vehicles leaving Petitioner's property would begin at his driveway. Petitioner's Exhibit 3 shows a 2,000-foot weave area, also beginning at the location of Petitioner's right-out driveway. Placing the start of the acceleration area and the weave area at the same point on an on-ramp is contrary to AASHTO design standards. The beginning of the weave area should be near the end of the acceleration area, which, on Petitioner's Exhibit 3, is supposed to be where vehicles on the on-ramp are traveling at the design speed of the highway they are attempting to enter. AASHTO places the beginning of the weaving area where the outside lane of the mainline and the inside lane of the on- ramp are separated by two feet. The weave area extends to a point where there is a twelve-foot separation of the mainline and off-ramp lanes at the next interchange. The design speed of U.S. Highway 19 is 55 miles per hour. It is uncontested that vehicles leaving Petitioner's property will be in a stopped condition prior to entering the on-ramp. Thus, looking at Petitioner's Exhibit 3, the beginning of the weave area should be placed approximately 965 feet to the north of the current location shown on Petitioner's Exhibit 3. In turn, this forces the deceleration area for the off-ramp to Coachman Road shown on Petitioner's Exhibit 3 to be shifted 965 feet to the north. Petitioner's expert testified that the off- ramp deceleration area at Coachman Road could be shifted between 300 and 400 feet to the north. Assuming this to be correct, this places the start of the off-ramp deceleration area approximately 965 feet to the north of its current location, which is 565 to 665 feet beyond the farthest point Petitioner's expert testified it could be moved. Respondent's experts also examined Petitioner's Exhibit 3 under the dictates of AASHTO. Unlike Petitioner, Respondent assumed a design speed of 50 miles per hour, and assumed that shorter distances for acceleration, weaving, and deceleration could be applied in this situation under AASHTO. Respondent's findings demonstrate that under the "Petitioner's best case scenario" the off-ramp at Coachman Road would still have to be moved approximately 600 feet to the north, which is at least 200 feet past the farthest possible shift testified to by Petitioner's expert. Moving the off-ramp would obviously require redesign and delay of the Coachman Road project to the north, already designed and funded for construction. Further, Petitioner's Exhibit 3 also did not take into account any need for increased acceleration distance on the on- ramp due to the grade of the road. For certain portions of the acceleration area of the on-ramp in Petitioner's Exhibit 3 the grade is steeper that 3 percent, and averages over 2 percent. AASHTO does not require an increase in acceleration distance where the grade is "less that two percent." AASHTO requires an increase when the grade is more than 3 percent. This is, according to Petitioner's witness, a "gray area" in AASHTO. In this situation, while AASHTO may not require a multiplier be applied to the entire acceleration distance, it would be safer for the traveling public to apply the multiplier at least to the portions above 3 percent and perhaps to the entire acceleration distance, and to acknowledge that the grade of the road militates against application of strict minimum AASHTO standard distances. Adjusting at all for grade would result in a longer on-ramp and require pushing the off-ramp at Coachman even further north, which makes Petitioner's Exhibit 3 alternative even less viable. Another factor that Petitioner's Exhibit 3 did not take into account was that a significant amount of traffic leaving the proposed right-out driveway would be fully-loaded heavy trucks both from Petitioner's property and the Pinellas County maintenance yard. The AASHTO acceleration distance of 965 feet shown in that Exhibit is for automobiles. Knowing that heavy, fully loaded trucks would be utilizing this driveway on a regular basis, the acceleration distance for such trucks reaching 55 or even 50 miles per hour would be longer than for a normal passenger vehicle. Petitioner's alternative proposal was fatally flawed in its misplacement of the weave area, and was defective in other respects such as not considering the slower heavy truck traffic or the grade of the road. Thus, it is apparent that under any interpretation of the AASHTO standards, Respondent could not safely design an on-ramp from the Drew Street area and an off-ramp to the Coachman Road interchange and provide Petitioner a right-out driveway in the approximate location of his existing right-out driveway. Based upon all the evidence presented at hearing, Respondent demonstrated that AASHTO standards preclude moving the on-ramp to the location proposed by Petitioner. Therefore, closing Petitioner's right-out driveway to reconstructed U.S. Highway 19 is mandated for safety and operational reasons. Access-Reasonableness Issues Following the reconstruction of U.S. Highway 19, the access proposed by Respondent for Petitioner's property is reasonable. An objective comparison of the alternative proposed by Petitioner and Respondent's proposal reveals that Respondent's design results in safer and more efficient access to the state highway system for Petitioner and direct access to east and west travel on Drew Street. One measurable point of comparison is the relative distance a vehicle would have to travel to reach the state highway system under Respondent's proposal versus Petitioner's. Prior to Petitioner's withdrawing from consideration all alternatives other than what was represented in Petitioner's Exhibit 3, Respondent presented testimony regarding two of Petitioner's earlier alternative concepts. These previous alternatives were referred to as Proposal One and Proposal Two. Proposal One was basically a right-out driveway in the form of an on-ramp that would have tied in to mainline U.S. Highway 19 prior to the railroad tracks. Proposal Two was a right-out driveway/on-ramp that tied into the off-ramp for Coachman Road. As far as comparing relative travel distances, both Proposals One and Two are similar to the alternative in Petitioner's Exhibit 3. For vehicles to travel north from Petitioner's property on U.S. Highway 19 in Respondent's design, vehicles travel south on Access Road A, west on Drew Street, and then south on the frontage road/on-ramp. This is a distance of .44 miles. To reach the same point using the access provided in Proposal One, Proposal Two, or Petitioner's Exhibit 3, a vehicle must travel north to the Coachman interchange, and double back south, a distance of approximately 1.45 miles. Thus, when added together, the distances for vehicles to travel north and south on U.S. Highway 19 in Respondent's design total 1.12 miles, or .33 miles less than the 1.45 miles to reach the same points using any of Petitioner's alternative driveway proposals. In addition, for vehicles that wish to travel east or west on Drew Street from Petitioner's property, Respondent's alternative is much shorter. It is .32 miles to reach Drew Street along Access Road A, and 1.6 miles to reach Drew Street from Proposal One, Proposal Two, or Petitioner's Exhibit 3. Another measurable point of comparison are conflict points, places such as intersections and merge areas where vehicles can be expected to change lanes. In Respondent's design, there are four or five conflict points to travel north on U.S. Highway 19, three or four to travel south on U.S. Highway 19, and one to travel east or west on Drew Street. Petitioner's Exhibit 3 shows two conflict points to travel north (right-out turn to on-ramp and merge to mainline), six or seven to travel south on U.S. Highway 19, and seven or eight to travel east or west on Drew Street (same as south on U.S. Highway 19 plus turn from off-ramp). For vehicles traveling north and south on U.S. Highway 19 from Petitioner's property, the number of conflict points in either Respondent's design or Petitioner's alternative are essentially even, but when travel on Drew Street is included in the comparison Respondent's design is clearly safer. A third point of comparison is that Petitioner's alternative provides one way in and one way out. Respondent's design provides two ways in and one way out. Respondent's design provides reasonable access to Petitioner's property. In comparison to Petitioner's alternative, Respondent's design provides for shorter combined travel distances. In regard to conflict points, Respondent's design is as safe as Petitioner's alternative, and safer if travel on Drew Street is included in the comparison. Finally, Respondent's design provides an additional point of ingress. Both witnesses called by Petitioner opined that the access proposed by Respondent was not reasonable, primarily because the access is not "direct." The basis of that opinion was limited to their belief that a "better" access plan, the alternative shown in Petitioner's Exhibit 3, was viable. Neither of Petitioner's witnesses knew the relative travel distances, nor did either witness testify about actual conflict points or any other possible objective points of comparison. Petitioner's witnesses' view are flawed because the alternative shown in Petitioner's Exhibit 3 is not viable. Assuming, arguendo, that Petitioner's Exhibit 3 reflected a safe design, and assuming that this access is reasonable, it would be contrary to logic to conclude that Respondent's design results in unreasonable access. The only "advantage" in Petitioner's Exhibit 3 versus Respondent's proposal is a right-out "direct" connection to U.S. Highway 19 via the on-ramp. However, comparing travel distances, conflict points, and points of ingress, Respondent's design is comparable if not superior, and thus, reasonable. Petitioner stressed that all other property owners along the U.S. Highway 19 corridor have right-in and right-out driveways on frontage roads, and that Petitioner is the only property owner required to use a facility like Access Road A for egress. Even if true, this circumstance does not in and of itself change Respondent's designed access for Petitioner's property into unreasonable access. Based upon objective criteria, Respondent's design is comparable or superior to Petitioner's alternative, and Respondent's design is comparable or superior to the access enjoyed by all other property owners in this vicinity. Engineering Study Pursuant to Rule 14-96.011, Florida Administrative Code, Respondent conducted an engineering study to examine the closure of Petitioner's right-out driveway. Normally, an engineering study is prepared prior to Respondent serving its Notice of Intent to close or alter a permitted driveway connection. The engineering study documents that there is a safety or operational problem with a particular driveway connection, and ensures that Respondent has an engineering basis to seek closure or alteration of the driveway. However, at the time this case came to hearing on March 20, 2001, Respondent was not aware that Petitioner's driveway may have been permitted. That is the reason the study was conducted during a continuance of this case and delivered to Petitioner on or around August 17, 2001. Petitioner agreed to the continuance for Respondent to conduct the study, and Petitioner had adequate time to conduct any further discovery in this case after receipt of the study. Thus, any procedural error in the timing of the study was waived by Petitioner and/or cured by Respondent. The Study does provide safety and operational bases for Respondent's agency action in this case. The study summarizes the history of the U.S. Highway 19 improvement project, discusses the current conditions, explains the proposed improvements, and reviews the safety and operational issues specific to Petitioner's right-out driveway in the post construction condition. The study also explains why two alternative right-out driveway configurations were not acceptable to Respondent. The study contains exhibits showing traffic patterns in the existing and possible future post construction conditions. The study was signed and sealed by a professional engineer registered in the State of Florida. The study did not discuss the Petitioner's alternative advocated at hearing. The reason the study did not address this concept was that at the time of its creation, Respondent did not have Petitioner's Exhibit 3. One other item not addressed was traffic accident data. Since the improvements of U.S. Highway 19 have not been constructed, there is no accident data for the right-out driveway in the post construction condition. Respondent stipulated that Petitioner's existing right-out driveway is safe, so any accident data relating to current conditions is not relevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order approving the closure of Petitioner's right- out driveway as part of the future constructed improvements to Highway 19 and the construction of Access Road A. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2001.
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
Findings Of Fact Stipulated Facts Facts set forth in paragraphs 1.-13., below, are agreed to by the parties. The Petitioner in this matter, Racetrac Petroleum, Inc., owns a parcel of land in Hernando County, on the southwest corner of State Road 50 and Windmere Extension. The parcel is located east of the Interstate 75/State Road 50 interchange. Petitioner has constructed a service station and convenience store at that location. State Road 50 has been classified as a Class 3 Road east of Interstate 75, with a posted speed limit of 45MPH. Interstate 75 is a limited access facility and the Interstate 75/State Road 50 interchange is a limited access interchange. To the west of Petitioner's parcel, and closer to the Interstate 75 interchange, is a Texaco service station which abuts State Road 50 and has two driveways to State Road 50. The Texaco service station does not abut any other road or connection to State Road 50. Abutting the east property line of Petitioner's parcel is a parcel that also abuts State Road 50 and on which a McDonald's restaurant is located. Along the common property line between the two parcels is a joint ingress and egress easement. This joint ingress and egress easement remains in effect as of this date. At this time, there is a four-lane paved facility on the easement which is east of Petitioner's parcel and on McDonald's parcel. That facility currently provides the only vehicular route to and from State Road 50 for Petitioner's parcel, the McDonald's parcel and the parcel to the south. The four-lane facility between Petitioner and McDonalds was originally constructed by McDonalds as a three-lane facility to serve its parcel, Petitioner's parcel and the parcel to the south. On December 16, 1992, during the construction of its service station and convenience store, Petitioner applied to Respondent DOT for a permit to modify the existing facility. The December 16, 1992, permit application proposed to "modify existing driveway per the request of Hernando County (Increase existing radius from 25' + to 50)." DOT approved Permit No. A-08-92-0023 on February 19, 1993. Petitioner completed construction of a service station and convenience store on the parcel and modified the facility in accordance with DOT's Permit. On June 15, 1993, Petitioner filed an application with DOT for an access connection permit to construct and operate a 28-foot wide right-in/right- out access connection to State Road 50, 185 feet west of the original driveway. The application was assigned Application No. A-08-93-0034P by DOT. On July 12, 1993, DOT issued a Notice of Intent to Deny the application. The Notice of Intent to Deny stated that the application was being denied for the following four reasons: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal falls to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing "joint use" access located 185' east of the proposed access connection. Proposed access connection may create safety and operational problems within the operational sphere of the Limited Access Interchange. The Notice of Intent to Deny also stated that Petitioner could appeal the intent to deny or submit a revised application within 30 days of receipt of the Notice. On September 13, 1993, Petitioner submitted plans for a right-in only connection to State Road 50. Accompanying the plans was a supporting traffic study and a transmittal letter. On October 7, 1993, DOT issued a letter which acknowledged receipt of the September 13, 1993, submittal and presented the following reasons why DOT's Notice of Intent to Deny would remain in effect: Proposal fails to provide 440' Minimum Clearance Spacing per 14-97.003 Proposal fails to provide 440' minimum clearance from end of the acceleration lane taper from a Limited Access facility (Inter- state 75) per Rule Chapter l4-97.003(l)(j)l. Reasonable access to the State Highway System is provided to the site via an existing easement located 185' east of the proposed access connection. None of the original reasons for denial were addressed. The Highway Capacity Software weave analysis in the Supplemental Traffic Report shows no benefit to the State Highway System. The traffic count and turning movement data indicate that the 4 lane facility is operating within capacity, thus showing that existing access is adequate. There is a significant difference in the rate of deceleration for vehicle entering the proposed driveway (5.81 mph/s) and the existing driveway from the ramp end (4.36 mph/s). The deceleration rate for vehicles entering the proposed driveway exceeds 5.5 mph/s. This rate is described in the ITE Transportation and Traffic Engineering Handbook as reasonably comfortable for car passengers. The proposed "Right In" geometry cannot reasonably accommodate WB-50 or WB-40 Vehicles. The Radius of Return at the Windmere Road entrance is 50'. The radius was improved from 40' and can now accommodate WB-50 vehicles. 1O. The site entrance is located some 200' from SR 50. There is ample space for truck movements given the existing access. The October 7, 1993, letter stated that DOT's Notice of Intent to Deny would remain in effect and that DOT would accept a response within eleven days of the receipt of the letter. The letter further stated that, if there was no response within eleven days, any future requests for connection would require a new application along with the applicable fee. On October 21, 1993, Petitioner filed the first petition for a formal hearing, which was assigned DOAH Case No. 93-6932. On December 15, 1994, Petitioner filed the second petition for a formal hearing, which was assigned DOAH Case No. 95-0248. Other Facts Petitioner's first interaction with DOT regarding access to State Road 50 resulted from meetings in late 1991 with DOT District 7 representatives. Access at the front of Petitioner's property, via a right-in/right-out driveway, was discussed during two or three meetings between representatives of the two parties. Petitioner was advised at that time of DOT's position that the proposed connection with State Road 50 could not be approved due to safety concerns about the impact of the connection on the operation of the interchange ramp coming off the interstate and the auxiliary lane on State Road 50. Petitioner was advised that the only access would be that afforded by the Windmere Extension, the four-lane facility located on the property easement between Petitioner's parcel and McDonalds. Windmere Extension is properly classified as a joint access connection to State Road 50. The pavement on the joint access easement terminates at the property lines of Petitioner and McDonalds with a barrier erected at the end of the drive. On December 5, 1992, DOT issued a Notice of Conceptual Review Findings, stating the following reasons for the denial: The proposed connection on State Road 50 encroaches into the merge lane from Inter- state 75; The proposed connection does not meet the requirements to be located a minimum of 1320 feet from the terminus point of the taper from the interstate; The frontage road immediately adjacent to the parcel on the east is designed to provide access to the site. Following receipt of the Notice of Conceptual Review Findings, Petitioner's representative applied again for a conceptual review in order to obtain direct affirmation that access would be afforded only via the Windmere Extension. DOT responded with a second denial specifically stating that access must be accomplished via Windmere Extension, the frontage road east of the property. Thereafter, Petitioner closed on the purchase of the property, apparently satisfied that Windmere Extension afforded adequate vehicular access for a convenience store and gasoline station. Petitioner normally attempts to ascertain property access prior to purchase. Petitioner's property is not properly classified as an isolated corner property under DOT's rules. Rather, Windmere Extension functions as a common access drive, as opposed to a road. It is the existence of Windmere Extension as an established access point for Petitioner that prevents the catagorization of Petitioner's property as an isolated corner property. In 1992, during the development of Petitioner's parcel, Petitioner applied for and received a permit from DOT to perform modifications on the Windmere Extension. Petitioner's representative confirmed his understanding with DOT's District 7 representative that this permit would be the only driveway requested by Petitioner. At the time of Petitioner's request for a permit to accomplish modifications to the Windmere Extension, McDonalds held an access permit for the Windmere Extension but was not made a party to the modification permit and has remained silent regarding the matter. In spite of the previous confirmation of Petitioner's representative of access via Windmere Extension, Petitioner applied in June, 1993, following completion of construction of their facility, for direct access to State Road 50 via a right-in, right-out connection. After denial of the requested right-in, right-out connection and prior to any request for formal administrative proceedings pursuant to Chapter 120, Florida Statutes, Petitioner requested the right-in connection on September 13, 1993. The request was filed subsequent to a conference between representatives of Petitioner and DOT which had been held to determine whether any basis existed upon which to mitigate denial of the requested right-in, right-out connection. Immediately upon exiting from Interstate 75 on to State Road 50, the first business entity on the right hand side is a Texaco service station. The Texaco station is an older facility and continues to utilize its only access to State Road 50, both right-in and right-out exits. Petitioner's proposed right-in only connection is less than 440 feet from Texaco's nearest driveway and is less than 440 feet from Windmere Extension. The proposed right-in only connection is less than 440 feet from the end of the taper of the eastbound exit ramp from Interstate 75 on the south side of State Road 50. The ramp extends into an auxiliary lane that continues eastward on State Road 50 and ends just past Windmere Extension. The purpose of the rule-required interval of 440 feet from the end of the taper of the exit ramp to the provision of an access point reflects a concern for safety. The spacing interval provides drivers exiting, in this case Interstate 75, with an opportunity to look rearward and pick a gap in through traffic and merge into the through lanes without the complication of also having to look forward to identify upcoming connections. The end of the taper of the exit ramp must be ascertained in order to determine where the 440 feet interval begins. An appropriate way to make this determination is to observe vehicles using the auxiliary lane to merge into the through lanes of State Road 50. The majority of the traffic exiting Interstate 75 via the eastbound State Road 50 ramp merges to the through lanes in front of the Texaco station and establishes the "functional end of the taper" as just east of Texaco's easternmost driveway. At this point, most vehicles exiting Interstate 75 have completed their merging movements to the through lanes of State Road 50. This location is consistent with the standard taper rate used by DOT to design ramps. The presence of a stoplight and a yield sign at the ramp for Interstate 75 and State Road 50 does not limit the influence of the interchange to the area west of the Texaco station. As established by observations made of vehicles entering the auxiliary lane from Interstate 75, most vehicles did not come to a stop at the yield sign before turning to the right and heading to the east. The area of influence of the interchange extends a considerable distance to the east. The Texaco station is closer to the Interstate than Petitioner's property, but it has little observed traffic. No evidence was presented probative of any significant safety or operational problem for the interchange ramp or State Road 50 which is occasioned by the placement of the Texaco Station. Constructed in the early 1970's, the station predates DOT access management spacing standards. Connections constructed prior to the adoption of those access management standards are "grandfathered." The Windmere Extension provides reasonably safe and efficient access to Petitioner's property on State Road 50. Observations support findings that petroleum product laden tankers are able to enter and exit the property, that passenger vehicles enter and exit without problems with their movements, and larger vehicles also enter and exit the property without backing traffic up onto the state highway. The joint access connection at Windmere Extension provides sufficient access to reasonably serve needs of Petitioner's property. Traffic flows effectively between Petitioner's property and State Road 50 via the joint access connection. The Petitioner's gasoline station appears to be reasonably busy. As documented by video tapes admitted in evidence, traffic is observed to be regularly entering and leaving the property. The station has been observed with all fueling stations occupied. Those occasional problems encountered with large vehicles on Petitioner's property appear to be susceptible to alleviation by on- site changes. The layout for the State Road 50 location is pretty much a standard site plan for Petitioner's properties. Petitioner's store and gasoline pumps are generally located toward the front of the parcel, facing State Road 50. At this time, the only function of the access connection at Windmere Extension is to provide vehicular access to the Petitioner and McDonald's parcels. As previously noted, a barrier marks the conclusion of Windmere Extension at the southern property boundary of the Petitioner and McDonalds parcels. No evidence was presented that development of the parcel to the south of these two businesses was impending. Absent development to the south, there is no reason to expect growth in traffic on Windmere Extension except due to growth of business for the Petitioner and McDonald's properties. Until development occurs, Windmere Extension will continue to provide reasonably safe and efficient access to Petitioner's property. The right-in only access connection proposed by Petitioner would create an unsafe condition on State Road 50. Petitioner proposes to locate the connection in an auxiliary lane extending from an Interstate 75 exit ramp. Most motorists exiting the Interstate and heading east use that portion of the auxiliary lane to merge with eastbound traffic lanes while other motorists merge into the auxiliary lane in anticipation of turning right at Windmere Extension. Most of the traffic merging into through lanes complete that maneuver in front of the Texaco station, while motorists merging to turn right at Windmere Extension complete that maneuver at the proposed connection location. The addition of the proposed right-in connection would cause some portion of the traffic currently turning right at Windmere to turn at the proposed connection, increasing conflicts between vehicles exiting Interstate 75 and accelerating into through lanes with those automobiles decelerating from State Road 50 in preparation for a right turn at Windmere Extension or the new proposed connection. Drivers from State Road 50, intending to enter the new connection, would merge into the ramp/auxiliary lane in front of the Texaco station, right where the majority of drivers currently accelerate and merge out into State Road 50. The simultaneous acceleration and deceleration of vehicles merging into and out of the auxiliary lane in front of the Texaco station would create a substantial safety problem for State Road 50. Distance would be shortened within which drivers must observe other traffic, pick their gap and merge into the other lane. Eastbound drivers exiting Interstate 75 to State Road 50 will be looking to the rear to pick their gaps as opposed to looking to those vehicles ahead in the auxiliary lane. In addition, the proposed connection would create a safety problem for the substantial number of eastbound drivers that would not enter the new connection but would continue down the auxiliary lane to turn right at Windmere Extension to patronize McDonalds. Drivers exiting Interstate 75 that turn right at Windmere tend to remain in the auxiliary lane the entire time. These drivers will be behind slowing vehicles that are turning into the new connection. To escape the slowing vehicles, eastbound auxiliary lane drivers will tend to encroach into the through lane as they pass around the turning vehicles. Similarly, eastbound State Road 50 drivers who normally merge into the auxiliary lane in front of the proposed connection will remain in the through lanes longer and either begin decelerating in the through lane, creating a speed differential in that lane, or will have to decelerate at an uncomfortable rate over a shorter distance in the auxiliary lane. The short length or "throat" of the proposed connection, coupled with the need of turning vehicles to avoid other vehicles on the Petitioner site, pose additional safety problems. Larger vehicles, such as semi-trailers with a 50-foot wheelbase, recreational vehicles, and trucks towing trailers will have difficulty entering the site if other vehicles are moving in front of the pump islands or larger vehicles are parked at the pumps. Some semi-trailers entering the proposed driveway would have to pass under the edge of the canopy that overhangs the gasoline pumps in order to make a turn. Similar difficulties can be expected when vehicles are maneuvering in the area between the pumps and State Road 50. Larger vehicles entering the proposed connection will have to slow or stop to avoid moving vehicles already on the property, creating an operational and safety hazard on State Road 50 as traffic queues in the connection. There is a greater likelihood that vehicles caught in a queue will back out onto State Road 50 at the proposed location than if they enter at Windmere. Alternatively, the diversion of right-turning vehicles into the new connection would not significantly improve the safety of the intersection of State Road 50 and Windmere Extension. There are presently no significant conflicts between westbound vehicles turning left into Windmere Extension and right-turning vehicles. The westbound left-turning vehicles that are delayed by traffic are normally blocked by eastbound through traffic, rather than right- turning vehicles. As set forth in an attachment to Petitioner's Exhibit 16 entitled Guidelines for Driveway Location and Design placement of connections within the functional area of an intersection is not advised. The location of the proposed connection is at about the end of the functional area of the Interstate 75 interchange, but the functional area of the State Road 50/Windmere intersection can be said to extend west of the proposed connection. The current access arrangement is safer than the situation that arises after construction of the proposed connection. Petitioner's September 13, 1993, submittal to DOT of a proposed right- in only connection was not a revised application under Rule l4-96.007(2)(b) but rather an informal proposal submitted as a result of a meeting between DOT and Petitioner's representatives. Subsequent to DOT's denial of Petitioner's request for a right-in, right-out connection, Richard Peoples, Petitioner's vice-president in charge of site design, authorized the submission of the September 13, 1993 right-in only proposal and intended that both the original right-in/right-out proposal and the revised right-in proposal be "on the table." People's testimony at the final hearing to the effect that the second submission was meant to be a revised application is in conflict with his earlier deposition testimony that all offers were on the table. His final hearing testimony on this point is, accordingly, not credited. People's deposition testimony substantiates DOT's position that the second submission by Petitioner did not constitute the submission of a revised or amended application. DOT's October 7, 1993, letter conveyed rejection of both the originally proposed right-in/right-out connection and the right-in only proposal. The letter acknowledges receipt of the drawings and the supporting traffic study associated with the second submittal. Several of the enumerated comments in the letter expressly reject or comment negatively on the contents of the September 13, 1993, submittal. Subsequent to the issuance of the October 7, 1993, letter, Richard Baier, an employee of DOT charged with consideration of the connection application, had a telephone conversation with Petitioner's representative Lawrence Hagen and verbally advised him that DOT had rejected Petitioner's proposed right-in only connection. Hagen understood that the proposed right-in only connection had been rejected. Petitioner's October 21, 1993, petition for formal hearing was filed 38 days after DOT received the September 13, 1993, submittal from Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's applications. DONE and ENTERED this 27th day of October, 1995, in Tallahassee, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-3. Accepted. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, hearsay. Rejected, not supported by weight of the evidence. Accepted. Rejected, absence of direct evidence. 13.-17. Rejected, not dispositive of material issues presented. Accepted, not verbatim. Rejected, subordinate to HO findings. 20.-21. Rejected, not materially dispositive. 22. Accepted. 23.-25. Rejected, not dispositive of material issues. 26. Rejected, not supported by the weight of the evidence. 27.-28. Rejected, relevance. 29.-30. Rejected, subordinate to HO findings. 31. Accepted. 32.-33. Rejected, subordinate, relevance. 34. Rejected, not supported by weight of the evidence. 35.-36. Rejected, subordinate to HO findings. Accepted, but not verbatim. Rejected, not supported by weight of the evidence. Accepted, not verbatim. Rejected, subordinate to HO findings. Rejected, legal argument. Rejected, subordinate to HO findings. Rejected, not supported by weight of the evidence. Rejected, subordinate to HO findings. 45.-48. Rejected, not supported by weight of the evidence. 49. Accepted. 50.-51. Rejected, subordinate to HO findings. 52.-56. Rejected, not supported by weight of the evidence. 57.-59. Rejected, subordinate to HO findings. 60. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-14. Accepted. Rejected, redundant. Accepted. 17.-20. Rejected, unnecessary. 21.-57. Accepted in substance, but not verbatim. COPIES FURNISHED: Paul Sexton Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 John H. Beck J. Victor Barrios Ellen Chadwell Attorneys at Law Beck Spalla et al. 1026 East Park Avenue Tallahassee, FL 32301 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Haydon Burns Building, M.S. #58 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 605 Suwannee Street 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact Petitioners purchased the property here involved in 1961 and occupied it as their residence until April 1991 when they moved to a new home they had just completed. The Hillsborough County Northwest Expressway was in the talking stage for several years before the final route for the Expressway was decided. Numerous public hearings were held before the final route of the Expressway was determined. Throughout most of these meetings and discussions Petitioners' property was deemed likely to be in the right-of-way of the Expressway and subject to taking. Anticipating their property would be taken for the Expressway, Petitioners, in 1989, purchased another lot on which to construct a residence. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority designated O.R. Colon Associates, Inc. (Colon) to serve as its agent in acquiring the property needed for this project. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter in January 1991 informing them that their property would probably be taken and that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. That letter further provided that: In order to facilitate construction of this project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistance payments and other costs payable only during the settlement process. (Emphasis added) Petitioners also had a business occupying the same property on which their residence was situated. This business was incorporated and did not move from the property until after Petitioners had moved into their new residence in April 1991. Subsequent to moving their residence from the property to be taken for the Expressway project Petitioners were shown a relocation brochure (Exhibit 2) prepared by Colon which contained information regarding relocation benefits. The first personal contact with Petitioner was made by an employee of Colon on January 16, 1992 at which time a written offer to purchase the property for $116,400 was presented to Petitioners.
Recommendation It is recommended that a Final Order be entered dismissing Verlyn Spivey's and Sandra Spivey's application for relocation benefits associated with the taking of their property in the right-of-way of the Hillsborough County Northwest Expressway. DONE and ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1992. COPIES FURNISHED: RONALD R SWARTZ ESQ 610 WATERS AVE - STE J TAMPA FL 33604 CHARLES G GARDNER ESQ ASST GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 THORNTON J WILLIAMS ESQ GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 BEN G WATTS/SECRETARY ATTN: Eleanor F. Turner DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458
The Issue Is it necessary for Respondent, the Department of Transportation (DOT), to close the southern driveway of the property of Petitioner, Barkmore Resort, Inc. (Barkmore)? If the driveway is closed, will the Barkmore property have reasonable access to the State Highway System?
Findings Of Fact Barkmore is located at 10125 Land O' Lakes Boulevard (SR 45), Land O' Lakes, Florida. The Barkmore property is a single parcel consisting of three lots with commercial operations for Barkmore Resort Kennel and a recreational vehicle and boat storage facility. The property's two driveways connect to SR 45. The northern driveway connects to the Barkmore parking lot and is aligned with the fence gate for the storage area. At some point in the past, the southern driveway had a cross-connection to the parking lot. It does not now. It currently consists of dirt and grass and terminates at a locked gate on the southern run of Barkmore’s fence. Images of the southern driveway do not show signs of recent use. Currently the driveways are "grandfathered" in and not subject to existing driveway requirements. SR 45 is part of Florida’s highway system. DOT regulates access to the state highway system to ensure safe, efficient, and effective maintenance and operation of the roads. Several statutes and rules govern DOT's activities, including when and how it can change a property's access to the system. DOT is planning a roadway widening project that will include reconstructing SR 45 into a four-lane roadway. This will permit a 55 mile an hour speed limit. The SR 45 project's approximate length is 2.7 miles reaching from north of Connerton Boulevard to south of State Road 52. Barkmore’s property abuts that stretch of road. DOT intends for the project to improve road capacity, traffic flow, and safety. The project is a significant change to the roadway and roadway design. The project includes modifications and improvements to driveway connections along SR 45. It also provides for a shared-use path for vulnerable users, including bicyclists and pedestrians, along the east side of the project. The path, however, is on the opposite side of SR 45 from Barkmore. Barkmore's driveway is one of approximately 19 driveway modifications DOT proposes as part of the project. Barkmore's southern and northern driveways are 155 feet apart. Florida Administrative Code Rule 14-97.003 requires 660 feet between driveway connections. This requirement alleviates "driveway confusion" for drivers caused by driveways in close proximity to each other, like those of Barkmore. The fact that Barkmore's southern driveway terminates in a locked gate adds to the confusion for drivers. Every driveway creates a conflict point with vehicles and pedestrians traveling on the road to which the driveway connects. Limiting conflict points promotes better traffic movement and an increased level of safety and mobility for the highway system. Because of these safety and traffic flow considerations, DOT proposed modifying the Barkmore driveways to bring them into compliance with current requirements. DOT proposed elimination of the southern driveway and significant improvement of the northern one. The project will replace the northern driveway's dirt and gravel with asphalt. The project will increase the width of the northern driveway from 12 feet to 24 feet at the right-of-way line. The project also increases the opening, or throat, where the northern driveway connects to SR 45, to 70 feet. After the proposed changes, the northern driveway will provide reasonable and improved access to Barkmore’s property, including to the southern gate. After modification, the northern driveway will provide for adequate vehicle circulation into and out of the Barkmore property. There is no evidence to support the claim of the hearing request that, "[t]here will be no way to access the electric poles, multiple septic tanks, and propane tank if the South driveway is closed" and the business would become "inoperable." On August 2, 2019, DOT sent Barkmore a notice advising of DOT's intent to close Barkmore’s southern driveway and widen its northern driveway connecting Barkmore's property to the DOT right-of-way for State Road 45. The notice also advised Barkmore of its right to request an administrative hearing. DOT conducted a hearing on October 15, 2019, to receive public input, to learn how the project will affect access to businesses, and to hear public input about the project’s potential economic impact on the business community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Transportation, enter a final order approving the closure of the southern driveway of Petitioner, Barkmore Resort, Inc., and improvement of the northern driveway as part of the State Road 45 project. DONE AND ENTERED this 29th day of January, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2021. COPIES FURNISHED: Stephanie N. Carver The Barkmore Resort 10125 Land O' Lakes Boulevard Land O Lakes, Florida 34638 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450
The Issue Whether the Department of Transportation (hereinafter referred to as the "Department") should close the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent's business located at 2770 Northwest 79th Street, Miami, Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent owns and operates a business, J'S Trading Post, which is located on the south side of Northwest 79th Street, just west of Northwest 27th Avenue, in Miami, Florida. Northwest 79th Street is an east-west roadway that is part of the State Highway System, having been designated State Road 934. Although Northwest 79th Street is part of the State Highway System, that segment of the roadway at issue in the instant case has not yet been given an access classification by the Department. The roadway segment has a posted speed limit of 40 miles per hour. Northwest 27th Avenue is a north-south roadway that is also part of the State Highway System, having been designated State Road 9. Northwest 79th Street and Northwest 27th Avenue form a "four legged" intersection. Northwest 27th Avenue is the major approach to the intersection. It has three through lanes (including a combined through/right turn lane), as well as an exclusive left turn lane, in each direction. Northwest 79th Street is the minor approach to the intersection. It also has three lanes (including a combined through/right turn lane) in each direction. Left turns from Northwest 79th Street onto Northwest 27th Avenue, however, are not presently permitted. Both Northwest 79th Street and Northwest 27th Avenue have restrictive medians at the intersection approaches. The Department conducted a traffic study and analysis of the intersection of Northwest 79th Street and Northwest 27th Avenue in 1993, which revealed, among other things, the following: the average speeds of eastbound and westbound traffic in the intersection were 35 and 38 miles per hour, respectively; the intersection's morning and afternoon peak hour volumes were 4,588 and 5,250 vehicles, respectively; the levels of service (LOS) for the intersection's morning and afternoon peak hours were D (with a 39.3 second delay) and F (with an undetermined amount of delay), respectively; and the intersection had been the site of a significant number of accidents.1 Following the completion of the study and analysis of the intersection, the Department reasonably determined that, in the interest of operational efficiency and safety, exclusive left turn lanes should be added to Northwest 79th Street at the intersection. There is presently an opening in the restrictive median that separates the eastbound and westbound lanes of Northwest 79th Street to the west of the intersection. The distance from the centerline of the median opening to the centerline of the intersection is 260 feet. The median opening is near, but not directly across from, the driveway that connects Respondent's property with the eastbound lanes of Northwest 79th Street. Westbound motorists on Northwest 79th Street use the median opening to access Respondent's property and other nearby driveways, even though such a maneuver is dangerous inasmuch as it involves the motorist travelling westbound for a short distance in the eastbound lanes of the roadway. The planned addition of an exclusive left turn lane on eastbound Northwest 79th Street will result in the closure of the median opening and the elimination of this safety hazard. Notwithstanding that it will be more inconvenient for westbound motorists on Northwest 79th Street to get to and from Respondent's business, it is prudent, from a traffic engineering and safety perspective, to close the median opening. Although Respondent's and his customers' direct access to and from Northwest 79th Street will be restricted if the median opening is closed, such access will not be eliminated entirely as a result of the closure. They will still have direct access to and from the eastbound lanes of the roadway.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order rejecting Respondent's challenge to the Department's proposed closure of the median opening on Northwest 79th Street, immediately west of Northwest 27th Avenue, near Respondent s business. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1994.
The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether a permit to close the CSX public at-grade railroad crossing located at C and J Road in Santa Rosa County should be granted pursuant to Rule 14-46.003(2)(b), Florida Administrative Code.
Findings Of Fact On October 14, 1994, CSX submitted an application to close the public at-grade railroad crossing located at C and J Road, (also known as Zero Lane) in Santa Rosa County. On November 8, 1995, DOT filed its Intent to Issue a Permit to close the C and J Road crossing. C and J Road is a narrow two lane, two-way paved road approximately 20 feet wide. The road runs roughly 0.2 mile in a north/south direction, with two zig-zag ninety degree turns at its southern end. After the road's ninety degree turn to the south, C and J Road crosses the CSX railroad tracks at the same elevation or grade as the railroad tracks and then "T" intersects with US Highway 90 via the crossing. Official area maps do not show C and J Road crossing the tracks or its intersection with US Highway 90. US Highway 90 runs roughly in an east/west direction. The CSX tracks parallel US Highway 90. One passenger and eight freight trains use the CSX railroad tracks and the crossing on a daily basis. At its north end C and J Road intersects with Johnson Road. Johnson Road extends generally in an east/west direction. It connects with St. Johns Road approximately 0.4 mile to the west of C and J Road. Additionally, Johnson Road connects with Airport Road approximately 0.5 mile to the east of C and J Road. Cassie Lane is a narrow, two-way, two-lane paved road. The road runs roughly north and south between C and J Road and Johnson Road. Cassie Lane connects to C and J Road via an "L" shaped curve just north of the crossing. Elimination of the crossing would turn C and J Road and Cassie Lane into a U-shaped road with exits on Johnson Road to the north. Currently, the curve intersection of Cassie Lane to C and J Road is overgrown with vegetation. The vegetation obstructs motorists' view of the intersection of Cassie Lane and C and J Road. However, sight obstructions for overgrown vegetation can be eliminated. St. Johns Road is a two-lane, two-way paved road. Airport Road is a two-lane, two-way, paved road. Both roads run in a north/south direction. There is about 0.5 mile between each road's intersection with Johnson Road and US Highway 90. Both St. Johns Road and Airport Road have an at-grade crossing with CSX Railroad near US Highway 90. Both crossings are protected by flashing lights and gates. However, the C and J Road crossing is protected by only flashing lights. Flashing lights alone are a less safe alternative to flashing lights and gates. Five school buses use Airport Road on a daily basis. One school bus regularly uses St. Johns Road on a daily basis. Likewise, at least one school bus uses C and J Road and Cassie Lane on a daily basis. The closure of the C and J Road crossing will not significantly effect the routes or efficient operation of any school bus. Additionally, fire, police and emergency medical vehicles use both St. Johns Road and Airport Road regularly. Again, the closure of the C and J Road crossing will not significantly affect fire, police, or emergency vehicles. St. Johns Road has an average daily traffic (ADT) count of 308 vehicles. Airport Road has an ADT of 1,534 vehicles. Both are more heavily travelled than C and J Road with an ADT of 35 vehicles. Both St. Johns Road and Airport Road can handle any additional traffic routed to St. Johns Road from C and J Road and Cassie Lane. Respondent's church is located on C and J Road northwest of the crossing. Respondent has been an active church for over 118 years. Respondent has approximately 98 contributing members from the church and its parish. Approximately sixty members, both young and old, of Respondent's congregation walk to the church on Saturday or Sunday for services and functions being held by the church. Some pedestrians coming from US Highway 90 follow the roadway over the crossing. However, many pedestrians regularly use two, more direct, well-beaten short-cut routes, over the railroad to Respondent's church instead of going out of their way to use the C and J Road crossing. It is unlikely that the closure of the crossing will have any impact on the walking routes of the church members. DOT inspected the crossing and recommended alternate routes should C and J Road's outlet to U.S. Highway 90 be closed. The alternate routes recommended by DOT are C and J Road/Cassie Lane-Johnson Road-St. John's Road and C and J Road/Cassie Lane-Johnson Road-Airport Road . All of the alternate routes were less than 1.5 miles and could be safely driven in less than 2.5 minutes. Neither the time nor distance of any of the alternate routes were shown to be inconvenient or unreasonable. Since the crossing is within the Santa Rosa County's geographical and governmental authority and responsibility for maintenance, DOT notified the Santa Rosa County Commission of its intent to close the crossing. However, the County did not request a hearing to prevent closing the crossing and consolidating the roadway traffic. The county probably did not request such a hearing because it had made an agreement with CSX and DOT to "help" close another road crossing in order to build a rail crossing on the road leading to the County's new prison facility. Additionally, Respondent has not provided or established the existence of an agreement between Respondent and a governmental body to assume jurisdiction of the crossing as required in Rule 14-46.003(2), Florida Administrative Code.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Transportation's decision to close the rail crossing at C and J Road in Santa Rosa County should be sustained. DONE and ENTERED this 31st day of October, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephen H. Shook, Esquire CSX Transportation, Inc. Law Department, J 150 500 Water Street Jacksonville, Florida 32202 Maldrick E. Bright, Esquire Post Office Box 3513 Milton, Florida 32572-3513 Ben G. Watts, Secretary Department of Transportation 535 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
Recommendation Based on the foregoing Findings of Pact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the entire structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446
