95-002794 Discount Auto Parts Retail Store No. 228 vs. Department Of Transportation Status: Closed Recommended Order on Monday, October 30, 1995.

Summary: There was sufficient evidence to prove that Sixth Street did not offer Petitioner reasonable access to it's property from SR 35. Permit should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DISCOUNT AUTO PARTS REPAIR )

STORE NUMBER 228, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2794

) DOT CASE NO. 95-126

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent, )

___________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings, held a formal hearing in this matter on August 14,

1995, in Lakeland, Florida.

APPEARANCES

For Petitioner: Douglas E. Polk, Jr., Esquire

BROWN CLARK & WALTERS, P.A.

1819 Main Street, Suite 1100

Sarasota, Florida 34236

For Respondent: Francine M. Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Should Petitioner's connection application No. C-16-010-95 for a

connection permit be denied?

PRELIMINARY STATEMENT

By a Notice of Intent to Deny dated April 5, 1995, the Department of

Transportation (Department) advised Petitioner of its intent to deny

Petitioner's permit application no. C-16-010-95 on the basis that: (a) the

proposed connection did not meet spacing requirements and; (b) there is

reasonable access to the site from Sixth Street NE (Sixth Street). By letter

dated May 1, 1995, the Petitioner requested an informal hearing but disagreed

with the facts set out in the Notice of Intent to Deny. Because there was a

dispute as to material facts, the Department, by letter dated May 31, 1995,

referred the matter to the Division of Administrative Hearings (Division) for

the assignment of a Hearing Officer and conduct of a formal hearing.

Petitioner presented the testimony of Dennis Wood. Petitioner's exhibits

one through five were received as evidence. The Department presented the

testimony of Michael J. Tako. Department's exhibits one through seven, nine and

ten were received as evidence. Department's exhibit eight was rejected.

Chapter 120, Sections 335.18 through 335.188 and Section 338.001, Florida

Statutes, and Chapters 14-96, 14-97 and 60Q-2, Florida Administrative Code were

officially recognized.

A transcript of the proceeding was filed with the Division on September 1,

1995. The Department filed an Unopposed Motion For Extension Of Time to file

its Proposed Recommended Order. The motion was granted and an order entered

with the understanding that any time constraint for the entry of a Recommended

Order imposed under Rule 28-5.402, Florida Administrative Code, was waived in

accordance with Rule 60Q-2.031(2), Florida Administrative Code. Petitioner

timely filed its Proposed Findings of Fact and Conclusions of Law. The

Department elected not to file any Proposed Findings of Fact and Conclusions

even under the extended time frame. A ruling on each proposed finding of fact

submitted by the Petitioner has been made as reflected in an Appendix to the

Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

1. 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.

2. The property which Petitioner filed an application for an access

connection to US Highway 17 (SR 35) is located on the southeast corner of the

intersection of SR 35 and Sixth Street in Fort Meade, Polk County, Florida.

3. Petitioner's property abuts the east right-of-way of SR 35, with

frontage of approximately 235 feet and the south right-of-way of Sixth Street,

with frontage of approximately 235 feet.

4. SR 35 has been designated as an intrastate system route.

5. The segment of SR 35 involved in this proceeding has been assigned an

Access Management Classification of Four with a design speed of 50 miles per

hour and a posted speed of 40 miles per hour . Also, this segment of SR 35

has a "non-restrictive median" as that term is defined in Rule 14-97.002(23),

Florida Administrative Code.

6. The distance between all cross streets running east and west which

intersect SR 35 within Fort Meade, Florida, including Sixth Street, is

approximately 440 feet. (See Petitioner's exhibit 2, Department's aerial photo

of the area)

7. Petitioner's application proposes a full movement access connection to

be located south of Sixth Street on SR 35 with a connection spacing between

Sixth Street and the proposed connection of 190 feet. This distance was

determined by measuring from the south edge of the pavement of Sixth Street to

the north edge of pavement of proposed access in accordance with Rule 14-

97.002(19), Florida Administrative Code. The centerline of the proposed

connection on SR 35 is located approximately 220 feet south of the centerline of

Sixth Street.

8. Petitioner's application also proposes an access connection to Sixth

Street which would give Petitioner indirect access to SR 35 through Sixth

Street. The centerline of the proposed connection on Sixth Street is located

approximately 135 feet east of the east curb of SR 35 presently in place.

9. Petitioner's proposed access connection to SR 35 is located immediately

north of a crest of a rise over which SR 35 traverses. Both south and north of

the crest is a depression through which SR 35 traverses. The point where Sixth

Street intersects SR 35 is located approximately at the bottom of the depression

north of the crest.

10. A motorist attempting to enter SR 35 from the proposed access

connection would have a full view of any vehicle moving north through the

depression to the south of the crest or moving south through the depression to

the north of the crest.

11. A motorist attempting to enter SR 35 from the east on Sixth Street

would have only a partial view of a vehicle moving north through the depression

to the south of the crest but a full view of any vehicle moving north through

the depression north of the crest.

12. Both Dennis Wood and Michael Tako testified that each had viewed the

traffic moving north through the depression south of the crest from a point

where Sixth Street intersects SR 35. They also testified that each had, from a

point where Sixth Street intersects SR 35, at least a partial view at all times

of the vehicles moving north through the depression south of the crest. Based

on the above and their assumption that the distance between cross streets along

SR 35 was 600 to 700 feet rather than approximately 440 feet as indicated in

Petitioner's exhibit 2, Department's aerial photo of the area, Wood believed and

Tako concluded that there was minimum clear sight distance that would allow a

motorist exiting Sixth Street to cross SR 35 safely, or turn left to enter the

southbound lane of SR 35 safely or turn right to enter the northbound land of SR

35 safely.

13. Because of the continuous partial view of the vehicles moving north

through the depression south of the crest from a point where Sixth Street

intersects SR 35 it may appear that there was minimum clear sight distance in

that area. However, there is insufficient evidence to establish facts to show

that a minimum clear sight distance was established because the height of the

originating clear sight line above the pavement or the height of the clear sight

line above the pavement at the vehicle observed, which are required to establish

a minimum clear sight distance (See Department's exhibit 10), were not

established. Also, the estimate of the distance between the originating point

of the clear sight line and the ending point of the clear sight line at the

vehicle observed was flawed due to the use of incorrect distances between the

cross streets.

14. There is insufficient evidence to show that a motorist looking south

from the point where Sixth Street intersects SR 35 would have the required

minimum clear sight distance as calculated by Department, as shown in

Department's exhibit 10, to allow a motorist to cross SR 35 safely or turn left

to enter the southbound lane of SR 35 safely or turn right to enter the

northbound lane of SR 35.

15. Presently, there are three access connections of approximately 20 feet

in width on SR 35 where Petitioner's property abuts SR 35. These access

connections where constructed before Petitioner had ownership of the property.

However, since there will be a change in land use, these access connections will

be closed if the site is developed whether this access permit is granted or

denied. Petitioner plans to close two of these access connections and

extend the opening to the third one if the application is approved.

16. SR 35 is a moderate volume road with approximately 17,000 average

daily trips (ADT's), increasing approximately 500 ADT's annually over the past

five years. Sixth Street has approximately 100 to 150 ADT's at present with the

ADT's projected to increase to approximately 300 if the site is developed and

Petitioner's application for the access connection to SR 35 is denied. However,

the number of vehicles entering SR 35 which constitutes traffic utilizing

Petitioner's establishment will be the same no matter where this traffic enters

SR 35.

17. Without the direct access connection to SR 35 there will be problems

with internal customer traffic flow and with the movement of semi-tractor

trailers that Petitioner uses to make deliveries to its store.

18. Although the present site plan design may be modified so as to utilize

the indirect access to SR 35 through Sixth Street, the modification of the site

plan design would create problems that would most likely result in the City of

Fort Meade not approving the modified site plan design.

19. Although using Sixth Street as an indirect access to SR 35 from the

site may provide a safe ingress and egress to and from SR 35, the lack of a

minimum clear sight distance notwithstanding, the Petitioner's proposed access

connection would provide a much safer ingress and egress to and from SR 35

because of a better clear sightdistance.

20. Although the indirect access to SR 35 through Sixth Street may provide

safe ingress and egress to and from SR 35, the indirect access does not provide

reasonable access to the site as the term "reasonable access" is defined in Rule

14-96.002(22), Florida Administrative Code.

21. The primary purpose of limiting access to SR 35 is to provide safer

conditions for vehicles utilizing SR 35.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings pursuant to Section

120.57(1), Florida Statutes.

23. The Department issued its Notice of Intent To Deny Petitioner's

Connection Application Number C-16-010-95 on the basis that: (a) the proposed

connection does not meet spacing requirements and; (b) there is reasonable

access to the proposed site from Sixth Avenue. The Department's position is

that the connection as proposed does not meet the minimum connection spacing

requirements as provided in Rule 14-97.003(1), Figure 2, Florida Administrative

Code. Therefore, a nonconforming permit is the only type of permit that can be

issued. However, the issuance of a nonconforming permit requires a showing by

the Petitioner that there is no other reasonable access, direct or indirect, to

the proposed site other than the proposed connection. The Department contends

that since the proposed site abuts Sixth Street Petitioner has a reasonable

access from the proposed site to SR 35 through Sixth Street without the

connection on SR 35 as proposed by Petitioner and, therefore, the application

for connection permit should be denied.

24. Petitioner agrees that its proposed access connection does not meet

the "minimum connection spacing" as that term is defined in Rule 14-97.002(19),

Florida Administrative Code, with the minimum spacing distances being determined

in accordance with Rule 14-97.003(1), Figure 2, Florida Administrative Code.

Furthermore, Petitioner agrees that should the Department approve Petitioner's

connection application it would require the Department to issue a nonconforming

permit. However, contrary to the Department's position, Petitioner contends

that Sixth Street does not provide Petitioner's proposed site with "reasonable

access" from SR 35.

25. Rule 14-97.002(19), Florida Administrative Code, provides:

(19) "Minimum Connection Spacing" means the

minimum allowable distance between conforming

connections, measured from the closest edge

of pavement of the first connection to the

closest edge of pavement of the second

connection along the edge of the traveled way.

26. In accordance with the authority granted to the Department by the

legislature under Section 335.188, Florida Statutes, to, among other things,

adopt access management standards and an access management control system, the

Department adopted Rule 14-97.003(1), Figure 2, Florida Administrative Code.

This rule requires a minimum connection spacing of 440 feet for a road such as

the segment of SR 35 involved in this proceeding with an Access Management

Classification (Access Class) of Four, a design speed of 50 mile per hour (MPH)

and a posted speed of 40 MPH. Since the distance between Sixth Street and

Petitioner's proposed connection is only 190 feet measured in accordance with

the Department's rule, the Petitioner's proposed connection does not meet the

minimum spacing distance. Petitioner's proposed connection having failed to

meet the minimum spacing distance, the connection application must be denied

unless it can be shown there are grounds for issuing a nonconforming permit.

27. Section 335.187(3), Florida Statutes, provides:

(3) The department may issue a nonconforming

access permit after finding that to deny an

access permit would leave the property without

a reasonable means of access to the State

Highway System. . . .

28. Rule 14-96.002(22), Florida Administrative Code, provides:

(22) "Reasonable Access" means the minimum

number of connections, direct or indirect,

necessary to provide safe ingress and egress

to the State Highway System based on Section

335.18, Florida Statutes, the Access Management

Classification, projected connection and roadway

traffic volumes, and the type and intensity of

land use.

29. Without question, the denial of Petitioner's connection application

would not require a new connection to SR 35 which is certainly a minimum number

of connections. However, minimum number of connections is not the only criteria

for determining safe ingress and egress to SR 35. Limiting the number of

connections to SR 35 is important but, limiting the number of connections should

not be at the expense of safe ingress and egress to SR 35 from the proposed

site.

30. Likewise, minimum clear sight distance is not the only criteria to be

considered in determining safe ingress and egress to SR 35 or to any roadway in

the state's highway system. However, minimum clear sight distance is certainly

an important one that should be given great weight. The record is not clear

whether a motorist would have minimum clear sight distance when entering SR 35

from Sixth Street, notwithstanding that the motorist may have a partial view of

a vehicle at all times while the vehicle is moving north through the depression

south of the crest. However, assuming arguendo that a motorist would have

minimum clear sight distance when entering SR 35 from Sixth Street; a motorist

entering SR 35 from the proposed connection would have a much clearer view of

the traffic moving north on SR 35 and a much safer entrance to SR 35 from the

proposed connection than the motorist entering SR 35 from Sixth Street.

Although it may be argued that the Sixth Street access gives safe ingress and

egress to SR 35, notwithstanding the absence of a minimum clear sight distance,

the proposed connection gives a much safer ingress and egress to SR 35 than does

the Sixth Street access. Additionally, the proposed connection provides much

better conditions for the internal flow of customer traffic and semi-tractor

trailers making deliveries to Petitioner which also contributes to a safer

ingress and egress to SR 35.

31. The burden of proof is on the party asserting the affirmative of an

issue before an administrative tribunal. Florida Department of Transportation v.

J.W.C. Company, Inc., 396 So.2d 778 (2d DCA Fla. 1989). To meet this burden the

Petitioner must establish facts to show, by a preponderance of the evidence,

that the Department's denial of the connection application would be denying the

Petitioner "reasonable access" to its property from SR 35. The Petitioner has

met this burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Department of Transportation enter a final order granting

Petitioner's Connection Application Number C-16-010-90 and issuing Petitioner a

nonconforming permit for the construction of the access connection to SR 35 as

designed and shown in the site plan attached to the application with conditions

deemed appropriate by the Department and provided for under Rule 14.96.009,

Florida Administrative Code.

RECOMMENDED this day 30th of October, 1995, at Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE, 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 30th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2794

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 Petitioner in this case.

Petitioner's Proposed Findings of Fact.

Proposed findings of fact 1 through 16 are adopted in substance as modified

in Findings of Fact 1 through 21.

The Respondent elected not file any proposed findings of fact.

COPIES FURNISHED:

Ben G. Watts, Secretary

ATTN: Diedre Grubbs

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire

General Counsel

Department of Transportation

562 Haydon Burns Building

695 Suwannee Street

Tallahassee, Florida 32399-0450

Douglas E. Polk, Jr., Esquire

BROWN CLARK & WALTERS, P.A.

1819 Main Street, Suite 1100

Sarasota, Florida 34236

Francine M. Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their 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.