94-000767 Department Of Transportation vs. John J. Curran Status: Closed Recommended Order on Monday, September 19, 1994.

Summary: Closure of medium opening justified on basis of safety and operational concerns and failure of opening to meet spacing requirements of interim standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0767

)

JOHN J. CURRAN, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on July 26, 1994, in Miami, Florida, before Stuart M.

Lerner, a duly designated Hearing Officer of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Assistant General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: John J. Curran, pro se

Post Office Box 470397

Miami, Florida 33247-0397

STATEMENT OF 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?

PRELIMINARY STATEMENT

By letter dated January 10, 1994, the Department advised

Respondent's of its intention to "close the median opening

located on N.W. 79 Street, immediately west of N.W. 27 Avenue

[which] serves the driveway connection for [Respondent's]

property located at 2770 N.W. 79 Street, Miami, Florida 33147."

The letter further informed Respondent of his right to request

an administrative hearing on the matter.

On January 20 1994, Respondent filed a petition challenging

the Department's preliminary determination to close the median

opening and requesting a formal administrative hearing. On

February 10, 1994, the Department referred the matter to the

Division of Administrative Hearings for the assignment of a

Hearing Officer to conduct the formal administrative hearing

Respondent had requested. The hearing was originally scheduled

for June 10, 1994, but was continued at the Department's

request. The hearing was ultimately held on July 26, 1994.

At the hearing, the Department presented the testimony of

one witness, Debora Rivera, a traffic engineer who works for the

Department. In addition to Rivera's testimony, the Department

offered six exhibits (Petitioner's Exhibits 1, 2a, 2b, 3, 4, and

5) into evidence. All six exhibits were received by the Hearing

Officer. Respondent testified on his own behalf. He presented

no other evidence.

Following the conclusion of the evidentiary portion of the

hearing, the Hearing Officer, on the record, advised the parties

of their right to file post-hearing submittals and established a

deadline for the filing of such submittals: 21 days from the

date of the Hearing Officer's receipt of the transcript of the

hearing. The Hearing Officer received the hearing transcript on

August 15, 1994. On August 29, 1994, the Department timely

filed a proposed recommended order containing, what are labelled

as, "findings of fact" and "conclusions of law." The

Department's proposed recommended order has been carefully

considered by the Hearing Officer. The "findings of fact" set

forth therein are specifically addressed in the Appendix to this

Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record

as a whole, the following Findings of Fact are made:

1. 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.

2. Northwest 79th Street is an east-west roadway that is

part of the State Highway System, having been designated State

Road 934.

3. 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.

4. The roadway segment has a posted speed limit of 40

miles per hour.

5. Northwest 27th Avenue is a north-south roadway that is

also part of the State Highway System, having been designated

State Road 9.

6. Northwest 79th Street and Northwest 27th Avenue form a

"four legged" intersection.

7. 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.

8. 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.

9. Both Northwest 79th Street and Northwest 27th Avenue

have restrictive medians at the intersection approaches.

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

CONCLUSIONS OF LAW

17. Sections 335.18 through 335.188, Florida Statutes,

constitute the "State Highway System Access Management Act"

(hereinafter referred to as the "Act").

18. The Act defines the scope of the Department's

authority to regulate access to the State Highway System and

prescribes the manner in which that authority must be exercised.

19. Section 335.181(2), Florida Statutes, addresses the

extent to which the Department may exercise its regulatory

authority where there is an abutting property owner. It

provides, in pertinent part, as follows: It is the policy of the

Legislature that:

(a) Every owner of property which abuts a

road on the State Highway System has a right

to reasonable access to the abutting state

highway but does not have the right of

unregulated access to such highway. The

operational capabilities of an access

connection 2 may be restricted by the

department. However, a means of reasonable

access to an abutting state highway may not

be denied by the department, except on the

basis of safety or operational concerns as

provided in s. 335.184.

(b) The access rights of an owner of

property abutting the State Highway System

are subject to reasonable regulation to

ensure the public's right and interest in a

safe and efficient highway system. This

paragraph does not authorize the department

to deny a means of reasonable access to an

abutting state highway, except on the basis

of safety or operational concerns as

provided in s. 335.184.

20. Section 335.184, Florida Statutes, provides, in

pertinent part, as follows:

(3) A property owner shall be granted a

permit for an access connection to the

abutting state highway, unless the

permitting of such access would jeopardize

the safety of the public or have a negative

impact on the operational characteristics of

the highway. Such access connection and

permitted turning movements shall be based

upon standards and criteria adopted, by

rule, by the department.

21. The "standards and criteria adopted, by rule, by the

department" are found in Chapter 14-97, Florida Administrative

Code.

22. The "interim standards" set forth in Rule 14-97.004,

Florida Administrative Code, are applicable to the segment of

Northwest 79th Street at issue in the instant case because this

roadway segment has not yet been formally classified by the

Department.

23. These "interim standards" provide, in pertinent part,

that, where the posted or design speed limit of the roadway

segment in question is 40 miles per hour, the "minimum median

opening spacing" is 0.25 miles for a "full median opening and

660 feet for a "directional median opening."

24. "Minimum median opening spacing,'" as that term is

used in the "interim standards," is defined in Rule 14-

97.002(20), Florida Administrative Code, as follows:

[T] he minimum allowable distance between

openings in a restrictive median 3 to allow

for crossing the opposing traffic lanes to

access property or for crossing the median

to travel in the opposite direction (U-

turn). The minimum spacing or distance is

measured from centerline to centerline of

the openings along the traveled way.

25. A "full median opening," as that term is used in the

"interim standards, is defined in Rule 14-97.002(15), Florida

Administrative Code, as follows:

[A]n opening in a restrictive median

designed to allow all turning movements to

take place from both the state highway and

the adjacent connection.

26. A "directional median opening," as that term is used

in the "interim standards," is defined in Rule 14-97.002(11),

Florida Administrative Code, as follows:

[A]n opening in a restrictive median which

provides for U-turn only, and/or left-turn

in movements. Directional median openings

for two opposing left or "U-turn" movements

along one segment of road are considered one

directional median opening. 4

27. An examination of the record in the instant case

reveals that the median opening at issue in the instant case

does not meet the applicable spacing requirements of the

"interim standards" and that "safety and operational concerns"

justify its closure. Moreover, the Department's closure of the

opening will not leave Respondent without "reasonable access" to

Northwest 79th Street inasmuch as his driveway, which connects

his property with the eastbound lanes of the roadway, will

remain open and therefore such action on the part of the

Department will not deprive Respondent of any right to which he

is entitled pursuant to the Act. See Division of

Administration, State Department of Transportation v. Capital

Plaza, Inc. , 397 So. 2d 682, 683 (Fla. 1981)(construction of "a

raised four-foot-wide median" on roadway preventing northbound

drivers from "turn[ing] across traffic directly into Capital's

service station" did not constitute a "deprivation of access"

inasmuch as there was "still free, unimpeded access to Capital's

service station albeit only by southbound traffic"); Division of

Administration, State Department of Transportation v. Palm Beach

West, Inc., 409 So. 2d 1130, 1131 (Fla. 4th DCA

1982)(construction of a "median strip" did not amount to denial

of access).

28. In view of the foregoing, the Department should reject

Respondent's challenge to its proposed closure of the opening.

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

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September, 1994.

ENDNOTES

l/ The intersection has been placed on the Department's "high

accident" list.

2/ A "connection," as that term is used in the Act, "means

driveways, streets, turnouts, or other means of providing for

the right of reasonable access to or from the State Highway

System."

3/ A "restrictive median," as that term is used in Rule 14-

97.002(20), Florida Administrative Code, is "the portion of a

divided highway or divided driveway physically separating

vehicular traffic traveling in opposite directions." The term

includes "physical barriers that prohibit movement of traffic

across the median such as a concrete barrier, a raised concrete

curb and/or island, and a grassed or swaled median." Rule 14-

97.002(26), Fla. Admin. Code. A "non-restrictive median," on

the other hand, is "a median or painted centerline which does

not provide a physical barrier between center traffic turning

lanes or traffic lanes traveling in opposite directions." Rule

14-97.002(23), Fla. Admin. Code.

4/ It is apparent from a reading of the language of Rule 14-

97.002(11), Florida Administrative Code, that an opening need

not allow for opposing left turn movements in order to be a

"directional median opening" subject to the spacing requirements

of the "interim standards."

APPENDIX

The following are the Hearing Officer's specific rulings on

the "findings of fact" set forth in the Department's proposed

recommended order:

1-7. Accepted and incorporated in substance, although not

necessarily repeated verbatim, in this Recommended Order.

8. Accepted as true but not incorporated in this

Recommended Order because it would add only unnecessary detail

to the factual findings made by the Hearing Officer.

9. Accepted and incorporated in substance.

10. To the extent that this proposed finding states that

the average speeds are 35 mile per hour in the eastbound

direction," it has been accepted and incorporated in substance.

Otherwise, it has been rejected because it is not supported by

competent substantial evidence.

11. Accepted and incorporated in substance.

12. Accepted as true but not incorporated in this

Recommended Order because it would add only unnecessary detail

to the factual findings made by the Hearing Officer.

13-14. Accepted and incorporated in substance.

15. Accepted as true but not incorporated in this

Recommended Order because it would add only unnecessary detail

to the factual findings made by the Hearing Officer.

16. Accepted and incorporated in substance.

17. Accepted as true but not incorporated in this

Recommended Order because it would add only unnecessary detail

to the factual findings made by the Hearing Officer.

18-21. Accepted and incorporated in substance.

22. To the extent that this proposed finding states that

"the median opening in this controversy is only approximately

260 feet from the intersection," it has been accepted and

incorporated in substance. Otherwise, it has been rejected

because it is more in the nature of a conclusion of law than a

finding of fact.

23-24. Accepted and incorporated in substance.

COPIES FURNISHED:

Charles G. Gardner, Esquire

Assistant General Counsel

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

John J. Curran

P.O. Box 470397

Miami, Florida 33247-0397

Ben G. Watts, Secretary

Department of Transportation

ATTN: Eleanor F. Turner

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire

General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this

recommended order. All agencies allow each party at least 10

days in which to submit written exceptions. Some agencies allow

a larger period of time within which to submit written

exceptions. You should contact the agency that will issue the

final order in this case concerning agency rules on the deadline

for filing exceptions to this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.