17-000947 Department Of Transportation vs. Ann W. Combee
 Status: Closed
Recommended Order on Friday, June 9, 2017.


View Dockets  
Summary: Department of Transportation established that two nonconforming driveways on Respondent's property should be closed and/or modified.

1S TATE OF FLORIDA

5DIVISION OF ADMINISTRATIVE HEARINGS

9DEPARTMENT OF TRANSPORTATION,

12Petitioner,

13vs. Case No. 1 7 - 0947

20ANN W. COMBEE,

23Respondent.

24_______________________________/

25RECOMMENDED ORDER

27D. R. Alexander, Adminis trative Law Judge of the Division

37of Administrative Hearings (DOAH ) , conducted a hearing in this

47case on April 18, 2017, in Bartow, Florida.

55APPEARANCES

56For Petitioner : Richard E. Shine, Esquire

63Department of Transportation

66Mail Station 58

69605 Suwannee Street

72Ta llahassee, Florida 32399 - 0458

78For Respondent: David W. Holloway, Esquire

84David W. Holloway, P.A.

8813100 Park Boulevard, Suite B

93Seminole, Florida 33776 - 35 39

99STATEMENT OF THE ISSUE S

104The issue s are (1) whether a driveway connection on

114Respondent's property in Auburndale, Florida, is subject to

122closure because it poses safety con cern s , and ( 2) whether a

135second driveway connection on R espondent's property should be

144modified because it fails to meet current access management

153standards.

154PRELIMINARY STATEMENT

156In a Notice of Intent to Modify Driveway Connection

165(Notice) served on December 27, 201 6, the Department of

175Transportation (Department) proposes to close a driveway

182connection to State Road 544 on Respondent's property on the

192ground it poses a potential safety condition. A construction

201plan attached to the Notice informed Respondent that th e

211Department also intend s to modify a second driveway connection

221on the property by reducing its width . Resp ondent timely

232requested a hearing and the matter was referred by the

242Department to DOAH to schedule a formal hearing.

250At the hearing, the Departmen t presented the testimony of

260t hree witnesses. Department Exhibits 1 , 2, 4, 5, 6 (pages 3

272through 7 only) , and 9 through 15 were accepted in evidence.

283E xhibit 8 was accepted on a proffer basis only. Respondent

294presented the testimony of three witnesses . Respondent's

302Exhibits 2 through 4, 7 through 9, and 11 were accepted in

314evidence.

315A one - volume T ranscript of the hearing was prepared.

326Proposed f indings of f act and c onclusions of law were filed by

340the parties, and they have been considered in the prepar ation of

352this Recommended Order.

355FINDINGS OF FACT

358A. Background

3601. The Department is the state agency responsible for

369regulating access between state roads and private property

377abutting th ose road s . See §§ 335.18 through 335.188, Fla. Stat.

390State Roa d 544 is a part of the state highway system.

4022. Since 1998, Respondent has owned a small, irregular ly

412shaped parcel of property located at 502 Havendale Boulevard

421(State Road 544) , Auburndale. The 0.46 - acre p arcel lies on the

434southeast corner of the in tersection of S tate Road 544 and

4464 2nd Street Northwest. Commercial establishments are located on

455the other three corners.

4593. In December 1998, Respondent lease d the property to a

470tenant who operates Townsend Motors, a used car lot. The

480business has operated continuously at that location since that

489time. Aerial p hotographs reflect the lot has a capacity of

500around 30 or so vehicles. Most ve hicles are displayed where the

512triangle - shaped lot comes to a point at the intersection and

524along the side of th e lot facing State Road 544 . Other vehicle s

539are parked throughout the middle or rear of the lot. They are

551rearranged from time to time to enhance sales. To replace cars

562that are sold, t he tenant typically buys a few cars at a time,

576which are delivered b y a tow truck . A uto carriers and large

590trucks with trailers are not used to deliver vehicles. On the

"601rare" occasion in the past when a "big transport" made

611deliveries, the truck used the parking lot in a nearby Publix

622store to the east.

6264. State Road 544 is classified as a class 7 road . See

639Fla. Admin. Code R. 14 - 97. 003(1) , Table 2 . That classification

652is assigned to roads where adjacent land is developed to the

663maximum feasible intensity and roadway widening is limited.

671See Fla. Admin. Code R. 14 - 97.003(2). The regulation provides

682that a driveway connection on a class 7 road must be at least

695125 feet from an intersection and at least the same distance

706from other connection s . This amount of spacing reduces driver

717confusion and the potential for r ear - end collisions.

7275. Respondent's parcel has two driveway connections , less

735than 125 feet apart, facing State Road 544. The first

745connection is approximately 60 feet east of the intersection and

755is known as the western connection . The second c onnect ion lies

768further east and is known as the eastern connection. A third

779driveway connection is located on the western side of the parcel

790facing 42nd Street Northwest.

7946. Driveway connections on state roads must be permitted

803or grandfathered. See § 335.1 825, Fla. Stat. ; Fla Admin. Code

814R. 14 - 96.011(3)(a). Neither connection on State Road 544 is

825permitted. A driveway is grandfathered if it was in existence

835prior to July 1, 1988, when access permits were first required.

846See Fla. Admin. Code R. 14 - 96.011( 3)(a). Because the driveway

858connections were in place before 1988, they qualify for that

868status. To retain that status, however, a driveway must be

878consistently used by the owner. If use is discontinued for a

889period of one year or more, the use is consi dered abandoned.

901See Fla. Admin. Code R. 14 - 96.005(2)(c).

9097. If a driveway loses its grandfathered status through

918abandonment , the owner must appl y for a n access permit ;

929otherwise, the driveway is subject to closure. A connection

938that retains its gran dfathered status may still be modified if

949safety or operational issues exist. See Fla. Admin. Code R. 14 -

96196.011(4)(b) ( the Department may modify a grandfathered

969connection "if such modification is determined to be necessary

978because the connection would jeo pardize the safety of the public

989or have a negative impact on the operational characteristics of

999the state highway" ). The parties agree the eastern driveway is

1010grandfathered and has been consistently used by the tenant since

10201998. The re is a dispute over the status of the western

1032driveway.

10338. The Department must allow owners of private properties

1042adjoining a state road to have " reasonable access " to and from

1053their property . See § 335.18(2)(a), Fla. Stat. As a general

1064rule, limiting the number of driv eway connections promotes

1073better traffic movement and an increased level of safety and

1083mobility for the system as a whole.

10909. To determin e the number of connections necessary to

1100establish reasonable access, the Department considers the

1107projected conne ction and roadway traffic volumes, the type and

1117intensity of the land use, the access management classification

1126of the state road , and the standards for that classification .

1137See Fla. Admin. Code R. 14 - 96.002(25).

1145B. The Intersection Project

114910 . The ge nesis of this dispute is a safety project

1161(Project) at the intersection of State Road 544 and 42nd Street

1172Northwest adjacent to Respondent's property. The Project was

1180initiated after the Department received pedestrian complaints

1187concerning safe travel acr oss the intersection to access retail

1197and food stores and a lack of crosswalks that comply with the

1209Americans with Disabilities Act (ADA) . The Project is only

12190.038 miles in length and is limited to improvements at the

1230intersection and the installation of sidewalks adjacent to

1238Respondent's parcel and the three other corner commercial

1246properties. There will be minim al impact to current vehicular

1256patterns , and no increase in capacity is expected .

12651 1 . Part of the design effort for the P roject include d an

1280ev aluation of existing driveway connections for potential

1288modifications that will improve traffic safety or traffic

1296operations on the roadway. This evaluation was limited to

1305driveways on State Road 544 , as the Department has no

1315jurisdiction over driveways o n 42nd Street Northwest, a local

1325road.

132612. During the planning process, the Department noted that

1335the western driveway is less than 125 feet from the

1345intersection , violates spacing requirements, and raises safety

1352concerns . Accordingly , the Department p roposes to remove it,

"1362saw it over," and install type F curb and gutter along the

1374roadway. To comply with access management standards for class 7

1384roads , the Department also proposes to narrow the width of the

1395eastern driveway from around 60 feet to 36 fee t and "widen the

1408wings somewhat" to allow larger vehicles to swing into and out

1419of the car lot. (Wings are the sides of the driveway that slope

1432down from the top of the curb to the street level.) No changes

1445to the driveway facing 42nd Street Northwest ar e proposed , and

1456no other driveways on State Road 544 near the intersection will

1467be modified. T he Department determined that no other practical

1477alternatives to this action exist.

14821 3 . Based on its evaluation of the property, the

1493Department concluded that o ne direct connection on State

1502Road 544 and an indirect connection on 42nd Street Northwest , a

1513local road, provide reasonable access to the property.

15211 4 . The Department intends to install new pedestrian

1531signal poles and increase access to a nearby b us stop. The

1543Project include s connected sidewalks for the four commercial

1552properties on the corners of the intersection and enhanced

1561special emphasis crosswalks that are designed to comply with the

1571ADA and connect to the existing Publix sidewalk to the ea st.

1583The high - visibility crosswalks , pedestrian signalization

1590improvements , and removal of the western driveway will improve

1599traffic movement through the intersection and enhance motorist,

1607bicycle , and pedestrian safety .

16121 5 . A Department Safety Office B enefit Cost Analysis

1623re vealed there were a total of 60 rear - end or angle crashes at

1638the intersection during the five - year period 2010 through 2014

1649and that some could have been prevented with better signage and

1660signals. The study projects 11 crashes will be avoided over the

1671upcoming five - year period once the Project is completed.

1681Besides reducing angle and rear - end crashes at the intersection,

1692the propos ed modifications will improve safety and operational

1701conditions for pedestrians and motorists who will have greater

1710connectivity to adjacent commercial properties .

1716C . Respondent's Objections

17201 6 . Respondent raises a number of objections to th e

1732Department's proposed action . She contends the western dr iveway

1742is not abandoned , and ev en though it fails to mee t current

1755spacing requirements , it should not be closed ; the proposed

1764modification to the eastern driveway is not warranted by safety

1774or operational concerns ; the D epartment violated a number of

1784statutory provisions during the process leading up to the

1793iss uance of the Notice; the proposed action will deny her and

1805the tenant reasonable access to the property ; and the changes

1815will reduce the value of the property .

1823a . The Western Connection

18281 7 . To comply with insurance requirements, in 1998 the

1839tenant erect ed bollards (short vertical posts embedded in the

1849driveway) a round m ost of the parcel to restrict access to the

1862premises . Among other locations, b ollards were placed along the

1873entire back side of the western connection , blocking off vehicle

1883access through that driveway. Bollards were also placed on

1892roughly half of the back side of the eastern connection , leaving

1903less than 30 feet open to allow vehicles to enter and exit the

1916premises. Even though the bollards remained in place for almost

192620 years, Respond ent consider s the m nothing more than temporary

1938fixtures , as they could be removed at any time by sawing them

1950off at ground level or pulling them out of the concrete .

19621 8 . The bollards remained in place until s hortly after the

1975Notice was received by Resp ondent in early January 2017. The y

1987were then removed by the tenant from the western driveway (and

1998other areas) . The tenant denies the Notice triggered the ir

2009removal and maintains they were removed to provide "extra room

2019for the FedEx and stuff like that to get in . " H e added that h is

2036current insurance company no longer requires bollards for

2044security purposes .

20471 9 . The Department contends the western driveway

2056connection was abandoned because bollards blocked vehicle acce ss

2065through th e driveway from Decem ber 1998 until January 2017. The

2077tenant's testimony confirms this assertion .

208320 . The tenant admits he has "not frequently [been] using

2094the westernmost driveway," but maintains the connection was

2102n ever abandoned, as Fed ex trucks and the mail carrier reg ularly

2115parked on the driveway apron, which lies between the roadway and

2126the bollards. Emergency responders also use the apron when

2135responding to accidents at the intersection, and disabled

2143vehicles traveling eastbound on State Road 544 are pushed onto

2153the apron. The bottom line is that even though the apron may

2165have been used, the driveway itself was not, and the connection

2176was basically used as a "pull - off . " In fact, the tenant

2189acknowledged that u ntil January 2017, except for customers who

2199used the park ing lots of adjacent businesses located south of

2210the parcel , all other customers used the eastern connection to

2220access the property .

22242 1 . The evidence supports a finding that, even if the car

2237lot has remained in business continuously, and Respondent did

2246not intend to abandon the driveway, for the reasons stated

2256above, it was effectively abandoned for more than one year.

22662 2 . Because the western driveway is only 60 feet from the

2279intersection and violates spacing standards , it is subject to

2288closure based on safety concerns . Without closure, additional

2297traffic will enter and exit the car lot, there will be less

2309driver reaction time for vehicles to stop, and it will increase

2320the potential for more pedestrian injuries and vehicle crashes.

2329b . The Eastern C onnection

23352 3 . The eastern driveway is 58 feet wide when measured at

2348the back of the property line . Until January 2017, less than

236030 feet w ere usable be cause bollards block ed the remainder of

2373the connection .

23762 4 . The maximum width for a class 7 drivew ay connection is

2390determined by the number of vehicle trips per day that enter a

2402property and whether the connection is in a rural or urban

2413location. Under current design standards for urban locations , a

242224 - foot driveway connection is typically allowed . S ee Dep't

2434Ex. 15. Assuming a large volume of traffic entering or exiting

2445the driveway, a maximum of 36 feet may be permitted. Id.

2456A lthough there is no evidence that a large volume of traffic

2468enters or exits the premises, a fter speaking with the owner's

2479representative , Mr. Combee, t he Department agreed to increase

2488the width fr om 24 feet to 36 feet and widen the sides (wings) to

2503make the driveway more accessible by customers and vehicles

2512making deliveries. By comparison, the nearby Publix store has a

252224 - foot connection to State Road 544 , al though it also has

2535several indirect connections on the local streets . Th e modified

2546connection is of sufficient length and size for vehicles to

2556enter and exit the premises.

2561c . Other Objections

2565i. Notice

25672 5 . Responden t contends the Department did not comply with

2579section 335.199(1) , Florida Statutes, before issuing the Notice .

2588That subsection provides as follows:

2593Whenever the Department of Transportation

2598propose s any project on the State Highway

2606System which will divid e a state highway,

2614erect median barriers modifying currently

2619available vehicle turning movements, or have

2625the effect of closing or modifying an

2632existing access to an abutting property

2638owner, the department shall notify all

2644affected property owners, municip alities,

2649and counties at least 180 days before the

2657design of the project is finalized. The

2664department's notice shall provide a written

2670explanation regarding the need for the

2676project and indicate that all affected

2682parties will be given an opportunity to

2689pr ovide comments to the department regarding

2696potential impacts of the change.

2701Subsection (3) of the statute also requires at least one public

2712hearing in the jurisdiction where the project is located.

27212 6 . The Department has always construed this provision as

2732applying only to large p rojects that involve an expenditure of

"2743upward of a million dollars" and take out or block medians,

2754remove turn lanes, or re configure intersection s in conjunction

2764with a modification or closure of a driveway connection.

2773Because the P roject entails the expenditure of $119, 936 .00, and

2785only new curbs, sidewalks, striping, and pedestrian signals are

2794contemplated, the Department considers it a " very limited scope"

2803project and one that does not implicate the statute.

28122 7 . For small projects such as this , th e Department

2824provides preliminary notification to the property owner and

2832tenant, if any ; a written notice setting forth the proposed

2842agency action and the reason for the changes ; an opportunity for

2853the owner to meet with Department representatives to express

2862concer ns ; notice to the affected local governments ; and

2871ultimately an administrative hearing, if one is requested. This

2880process complies with section 335.1825(3), which only requires

"2888reasonable notice" to the owner before clos ing an unpermitted

2898connection.

28992 8 . Before the Notice was issued, oral noti ce regarding

2911the P roject was given to the tenant by a Department

2922representative . During the meeting , the tenant told the

2931representative that he "didn't mind" if the western drivewa y was

2942removed. A lso, a Department representative spoke by telephone

2951with Mr. Combee before the Notice was issued , but Mr. Combee

2962says he was under the impression t he Department was only seeking

2974to close the connection on 42nd Street Northwest. A n on - site

2987meeting with Mr. Combee and his counsel was conducted in

2997February 2017. Based on concerns expressed by Mr. Combee , the

3007Department agreed to increase the width of the eastern driveway

3017from 24 to 36 feet and widen the wings to provide greater

3029accessibility into and out of the lot.

303629 . Besides meeting with the tenant and Mr. Combee, the

3047Department informed the City of Auburndale and Polk County about

3057the intersection project and asked them whether any comments had

3067been received from the public regarding t he intersection.

30763 0 . Assuming arguendo that section 335.199 applies to

3086e very project involving the closure or modification of a

3096driveway connection , regardless of its size, there was no

3105showing that Respondent was prejudiced by the Department's

3113failure to comply with all requirements of the statute.

3122ii. Lack of an Engineering Study

31283 1 . Respondent contends the Department violated Florida

3137Administrative Code R ule 14 - 96.011(4)(b) by failing to conduct a

3149formal engineering study to substantiate the safety and

3157operational concerns for closing and modifying the connections.

31653 2 . In lieu of a signed and sealed engineering study , the

3178Department performed a Safety Cost Benefit Analysis documenting

3186the five - year crash history at the intersection. The study als o

3199includes an engineer's estimate of the type and cost of specific

3210improvements planned to improve the safety of motorists and

3219pedestrians at the intersection. See Resp. Ex. 5.

32273 3 . N othing in rule 14 - 96.011(4) or (5) requires that a

3242formal engineering study be conducted before closing an

3250unpermitted connection or modifying a grandfathered connection.

3257In fact, the rule cited by Respondent provides the "problem may

3268be substantiated by an engineering study signed, sealed, and

3277dated by a professional engin eer registered in the State of

3288Florida." ( e mphasis added). Th erefore , both driveway s are

3299subject to removal or modification without any type of formal

3309study being conducted. Here, the Department relied on a study

3319of the crash history at the intersection , access management

3328standards for connections on class 7 roadways , and safety

3337concerns expressed by members of the public . Th ese measures are

3349adequate to support the Department's proposed action.

3356iii. Reasonable Access

33593 4 . Respondent contends the Depart ment's proposed action

3369leaves her without "reasonable access" to the property. To

3378support this contention, h er engineering expert opine d that both

3389driveways on State Road 544 are necessary in order for large

3400trucks making deliveries to enter and exit the lot . Th e

3412engineer assumed incorrectly, however, that semi - trucks and

3421trailers now access the property to make deliveries , and a

343136 - foot d riveway will be too small to accommodate that type of

3445vehicle. He also opined that large trucks c annot access the

3456p roperty through the 42nd Street Northwest connection because a

3466building is located in the middle of the parcel and prevents

3477them from being driven across the lot and exiting through the

3488eastern connection.

34903 5 . The expert agrees a 36 - foot driveway provi des

3503reasonable access for automobiles and small trucks. The

3511evidence shows that r e placement vehicles are normally delivered

3521by a tow truck hauling no more than one or two at a time and

3536l arge semi - truck s and trailer s do not make deliveries at the

3551property. Assuming th at th e m ail carrier or FedEx wish to

3564continue parking where the apron now sits while they deliver the

3575mail or a package , they can do so by pulling over the six - inch

3590curb and park ing on the grass.

359736. The evidence supports a finding that o ne direct access

3608point on State Road 544 and one indirect access point on

361942nd Street Northwest provide reasonable access to the property

3628and res ult in safer and more efficient access to the state

3640highway system.

3642iv. Economic Concerns

36453 7 . Respondent contends the value of her property will be

3657diminished as a result of the closure of the western conn ection .

3670However, e conomic injury is not a statutory consideration for

3680closing or modifying connections , and redress for that type of

3690injury , if any, lies in another forum.

3697v. Management of Project

37013 8 . The Department routinely allows construction project

3710administrators who are not professional engineers to manage the

3719day - to - day work on intersection projects such as this. While

3732the project plans were sig ned and sealed by a professional

3743engineer, who is the project engineer of record, a construction

3753project administrator , Mr. Freeman, will take the plans and

"3762make it a reality in the field." R espondent contends

3772Mr. Freeman is violating section 471 .003(1) by performing

3781certain investigative, evaluating, planning, and designing

3787activities without an engineering l icense. Assuming arguendo

3795th is is true, jurisdiction over that issue lies with the Florida

3807Board of Professional Engineers and not the Depa rtment.

3816CONCLUSIONS OF LAW

38193 9 . The Department initiated this action by issuance of a

3831Notice , with an attached construction plan sheet, alleging that

3840the eastern and western driveway s are nonconforming connections

3849and must be modified or closed. Therefore , the Department has

3859the burden of proving , by a preponderance of the evidence, th e

3871allegations in the Notice and plans . See Dep't of Transp. v.

3883J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

389440 . Section 334.044(14) provides that the Departm ent has

3904the following power and duty:

3909(14) To establish, control, and prohibit

3915points of ingress to, and egress from the

3923State Highway System . . . as necessary to

3932ensure the safe, efficient, and effective

3938maintenance and operation of such

3943facilities.

394441. Se ction 335.181 of the State Highway Access Management

3954Act establishes the broad framework for regulating access to

3963state roads . It provides in relevant part:

3971(1)(a) Regulation of access to the State

3978Highway System is necessary in order to

3985protect the publ ic health, safety, and

3992welfare, to preserve the functional

3997integrity of the State Highway System, and

4004to promote the safe and efficient movement

4011of people and goods within the state.

4018* * *

4021(2)(a) Every owner of property which abuts

4028a road on the State Highway System has a

4037right to reasonable access to the abutting

4044state highway but does not have the right of

4053unregulated access to such highway. The

4059operational capabilities of an access

4064connection may be restricted by the

4070department. However, a means of reasonable

4076access to an abutting state highway may not

4084be limited by the department, except on the

4092basis of safety or operational concerns as

4099provided in s. 335.184.

4103(b) The access rights of an owner of

4111property abutting the State Hi ghway System

4118are subject to reasonable regulation to

4124ensure the public's right and interest in a

4132safe and efficient highway system. This

4138paragraph does not authorize the department

4144to deny a means of reasonable access to an

4153abutting state highway, except on the basis

4160of safety or operational concerns as

4166provided in s. 335.184.

417042 . Section 335.182 requires that the Department adopt

4179rules for closing or modifying nonconforming connections. In

4187accordance with th is responsibility , th e Department has adopt ed

4198rules in chapters 14 - 96 and 14 - 97 . To resolve this dispute,

4213reference to the following rules is necessary.

422043. R ule 14 - 96.01 5 prescribes certain requirements that

4231must be met when modifying unpermitted and grandfathered

4239connections in conjunction wi th a Department safety project . It

4250reads in relevant part as follows:

425614 - 96.015 Department Design and

4262Construction Projects .

4265When existing connections are modified by a

4272Department project, access will be provided

4278to abutting properties, subject to

4283reaso nable regulation as referred to in

4290Section 335.181(2)(b), F.S. To the maximum

4296extent feasible, this new access will be

4303consistent with adopted Department

4307connection standards.

4309(1) Corridors will be examined during the

4316preliminary engineering and design phases to

4322determine if existing connections, median

4327openings, and signals spacing and design

4333standards are in conformance, or can be

4340brought into conformance, with adopted

4345Department standards.

4347* * *

4350( 3 ) Where connections are to be modified as

4360part of a Department construction project,

4366and the Department is not planning to

4373acquire any portion of the property for the

4381project , the Department will provide notice

4387and opportunity for an administrative

4392proceeding pursuant to Rule 14 - 96.01 1(1)(d),

4400F.A.C., construction plans for a Department

4406project signed, sealed, and dated by a

4413Professional Engineer registered in the

4418State of Florida shall substantiate a

4424connection's non - conformance with Department

4430standards or potential safety or operatio nal

4437problem, and a separate engineering study

4443shall not be required.

4447* * *

4450(5) The Department shall bear the cost of

4458modification of existing approved

4462connections, necessitated solely by

4466Department construction projects. When a

4471permitted or grandfathered

44744 4 . The Department has also adopted rule 14 - 96.011, which

4487establishes standards for modifying unpermitted connections. It

4494reads in relevant part:

449814 - 96.011 Modification of Connections.

4504* * *

4507(3) Unp ermitted Connections.

4511(a) Grandfathered Connections to the State

4517Highway System. Connections permitted or in

4523existence prior to July 1, 1988, use of

4531which have never been discontinued as

4537described in subparagraph 14 - 96.005(2)(c)3.,

4543F.A.C., are considere d "grandfathered" and

4549shall not require the issuance of a permit

4557and may continue to provide connection to

4564the State Highway System except as provided

4571in subsection (4).

4574(b) Unpermitted/Non - Grandfathered

4578Connections. All other unpermitted

4582connections ar e subject to closure in

4589accordance with paragraph (5)(b).

4593(4) Modification of Grandfathered

4597Connections.

4598* * *

4601(b) The Department will modify a connection

4608if such modernization is determined to be

4615necessary because the connect ion would

4621jeopardize the safety of the public or have

4629a negative impact on the operational

4635characteristics of the state highway. The

4641problem may be substantiated by an

4647engineering study signed, sealed, and dated

4653by a professional engineer registered in th e

4661State of Florida. Such engineering study

4667shall consider the following:

46711. Analysis of accidents or operational

4677analysis directly involving the connection

4682or similar connections, or a traffic

4688c onflicts analysis of the site.

46942. Analysis of the impact modification of

4701the connection will have on maintenance or

4708safety on the public road system.

47143. Analysis of the impact modification of

4721the connection will have on traffic patterns

4728and circulation on the public road system.

47354. The principles of transpor tation

4741engineering as determined by generally

4746accepted professional practice.

4749(c) If the Department acts to modify a

4757connection, the Department shall offer an

4763opportunity to meet on site with the

4770property owner or designated representative.

4775The Departme nt will take into consideration

4782the following:

47841. Documents, reports, or studies obtained

4790by the property owner or lessee and provided

4798to the Department.

48012. Alternative solutions proposed by the

4807property owner.

4809(5) Notification Process for Modificatio n

4815of Unpermitted Connections. Notice of the

4821Department's intended action will be

4826provided in accordance with Rule Chapter 28 -

4834106, F. A. C.

4838(a) The Department shall give written

4844notice to the property owner, with a copy to

4853the occupant, for a grandfathere d connection

4860if significant changes have occurred or if

4867the connection is found to cause a safety or

4876operational problem (as specified in this

4882rule chapter). The notice will identify the

4889specific information regarding the safety or

4895operational problem and request that the

4901problem be corrected or that a written

4908agreement on a schedule for the correction

4915be approved by the Department within 30 days

4923of receipt of the notice.

4928* * *

49312. If the reason for the modification is a

4940safety or operational problem, the notice

4946will state the basis of the Department's

4953determination and describe the changes

4958necessary to reduce the hazard or correct

4965the situation.

4967* * *

4970( 6 ) Responsibility for Costs of Correcting

4978Deficienci es. The property owner and

4984current user of the connection shall be

4991responsible for the costs of modifications

4997required pursuant to actions taken in

5003accordance with the procedure in Rule 14 -

501196.011, F.A.C.

50134 5 . In this case, the Department has fully compli ed with

5026the requirements of the law and applicable regulations set forth

5036above. The evidence clearly establishes that closure of the

5045abandoned, nonconforming western connection will improve

5051vehicular and pedestrian safety. Also, reducing the width of

5060the nonconforming eastern driveway is required in order to meet

5070class 7 access standards. The eastern driveway and the driveway

5080on 42nd Street Northwest provide reasonable access to

5088Respondent's property. There are no reasonable alternative s

5096that would impr ove safety and provide reasonable access to the

5107parcel.

5108RECOMMENDATION

5109Based on the foregoing Findings of Fact and Conclusions of

5119Law, it is

5122RECOMMENDED that the Department of Transportation e nter a

5131final order approving the clos ure of Respondent's weste rn

5141driveway and modif ication of the eastern driveway , as part of

5152the Department's State Road 544 Safety Project .

5160DONE AND ENTERED this 9 th day of June , 201 7 , in

5172Talla hassee, Leon County, Florida.

5177S

5178D . R. ALEXANDER

5182Administrative Law Judge

5185Division of Admi nistrative Hearings

5190The DeSoto Building

51931230 Apalachee Parkway

5196Tallahassee, Florida 32399 - 3060

5201(850) 488 - 9675

5205Fax Filing (850) 921 - 6847

5211www.doah.state.fl.us

5212Filed with the Clerk of the

5218Division of Administrative Hearings

5222this 9 th day of June , 201 7 .

5231CO PIES FURNISHED:

5234Michael J. Dew , Secretary

5238Department of Transportation

5241Mail Station 57

5244605 Suwannee Street

5247Tallahassee, Florida 32399 - 0450

5252(eServed)

5253Andrea Shulthiess , Clerk of Agency Proceedings

5259D epartment of Transportation

5263Mail St ation 58

526760 5 Suwannee Street

5271Tallahassee, Florida 32399 - 0 4 5 0

5279(eServed)

5280T om Thomas , General Counsel

5285Department of Transportation

5288Mail St ation 58

5292605 Suwannee Street

5295Tallahassee, Florida 32399 - 0450

5300(eServed)

5301Richard E. Shine, Esquire

5305Department of Transportation

5308Mail St ation 58

5312605 Suwannee Street

5315Ta llahassee, Florida 32399 - 0458

5321(eServed)

5322David W. Holloway, Esquire

5326David W. Holloway, P.A.

533013100 Park Boulevard, Suite B

5335Seminole, Florida 33776 - 3539

5340(eServed)

5341NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5347All parties have the r ight to submit written exceptions within

535815 days of the date of this Recommended Order. Any exceptions to

5370this Recommended Order should be filed with the agency that will

5381render a final order in this matter.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/18/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 09/07/2017
Proceedings: Agency Final Order
PDF:
Date: 07/03/2017
Proceedings: Florida Department of Transportation's Responses to Respondent's Exceptions filed.
PDF:
Date: 06/22/2017
Proceedings: Ann W. Combee's Exceptions to ALJ's Recommended Order filed.
PDF:
Date: 06/09/2017
Proceedings: Recommended Order
PDF:
Date: 06/09/2017
Proceedings: Recommended Order (hearing held April 18, 2017). CASE CLOSED.
PDF:
Date: 06/09/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/19/2017
Proceedings: Florida Department of Transportation's Proposed Recommended Order filed.
PDF:
Date: 05/19/2017
Proceedings: Ann W. Combee's Proposed Recommended Order filed.
Date: 04/18/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/13/2017
Proceedings: (Petitioner's) Pre-hearing Statement filed.
PDF:
Date: 04/13/2017
Proceedings: Respondent Ann W. Combee's Pre-hearing Statement filed.
Date: 04/12/2017
Proceedings: Respondent's Notice of Filing (proposed exhibits 1-11 and index of exhibits; not available for viewing) filed.  Confidential document; not available for viewing.
PDF:
Date: 04/10/2017
Proceedings: Notice of Cancelling Deposition filed.
PDF:
Date: 04/10/2017
Proceedings: Order Granting Request for Official Recognition.
PDF:
Date: 03/31/2017
Proceedings: Respondent's Request for Judicial Notice/Official Recognition filed.
PDF:
Date: 03/23/2017
Proceedings: Amended Notice of Hearing (hearing set for April 18, 2017; 9:30 a.m.; Bartow, FL; amended as to final hearing location).
PDF:
Date: 02/21/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/21/2017
Proceedings: Notice of Hearing (hearing set for April 18, 2017; 9:30 a.m.; Bartow, FL).
PDF:
Date: 02/20/2017
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 02/14/2017
Proceedings: Initial Order.
PDF:
Date: 02/13/2017
Proceedings: Agency action letter filed.
PDF:
Date: 02/13/2017
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 02/13/2017
Proceedings: Agency referral filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
02/13/2017
Date Assignment:
02/14/2017
Last Docket Entry:
09/18/2017
Location:
Bartow, Florida
District:
Middle
Agency:
Other
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (12):

Related Florida Rule(s) (2):