98-002186 Hugh Allen Oden vs. Department Of Transportation Status: Closed Recommended Order on Monday, December 14, 1998.

Summary: Petitioner has no standing to challenge the denial of his driveway/connection permit because he has no ownership interest in the subject properly.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HUGH ALLEN ODEN, )

)

Petitioner, )

)

vs. ) Case No. 98-2186

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

This cause came on for formal hearing on October 6, 1998, in

Tallahassee, Florida, before Suzanne F. Hood, Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hugh Allen Oden, pro se

8612 Westview Lane

Pensacola, Florida 32514

For Respondent: Brian F. McGrail, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

602 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether Petitioner has

standing to bring this action; and if so, (2) whether Respondent

properly denied his application for a driveway/connection permit.

PRELIMINARY STATEMENT

In a Notice to Deny Permit dated March 23, 1998, Respondent

Department of Transportation (Respondent) denied Petitioner Hugh

Allen Oden's (Petitioner) application for a connection permit,

Permit Application Number 98-A-394-0013.

Petitioner requested an informal hearing on April 21, 1998.

Respondent subsequently determined that the case involved

disputed issues of material fact. On May 12, 1998, Respondent

referred the case to the Division of Administrative Hearings.

Respondent filed a Response to Initial Order on May 21,

1998. Petitioner filed his response on May 28, 1998. A Notice

of Hearing, dated May 28, 1998, scheduled the case for hearing on

October 6, 1998, in Pensacola, Florida.

On July 1, 1998, Petitioner filed a ex parte letter

requesting information about hearing procedures. On July 13,

1998, the undersigned issued an Order Publishing Ex Parte

Communication.

On July 22, 1998, the undersigned issued a Notice of Video

Hearing and Order of Instructions. This notice advised the

parties that the hearing would be conducted on October 6, 1998,

by video teleconference. Pursuant to the notice, the

Administrative Law Judge would be located in Tallahassee,

Florida. Other participants in the hearing would be located in

Pensacola, Florida.

On August 24, 1998, Petitioner filed a request for the

hearing to be held with all parties appearing in Tallahassee,

Florida. The undersigned granted this request by order dated

August 11, 1998.

During the hearing, Petitioner testified on his own behalf.

He offered six Exhibits which were admitted into evidence.

Respondent presented the testimony of two witnesses.

Respondent's Exhibits DOT 1-6 and 8-10 were admitted into

evidence.

One of Respondent's exh ibits was a deed to the property

which was the subject of Petitioner's application. The deed

raised questions regarding Petitioner's standing to request a

formal hearing. The undersigned granted Petitioner leave to file

a post-hearing exhibit on or before October 16, 1998,

demonstrating his ownership interest in the subject property.

Petitioner filed a post-hearing exhibit on October 15, 1998.

A copy of the transcript was filed with the Division of

Administrative Hearings on October 30, 1998. Petitioner filed a

Proposed Recommended Order on November 12, 1998. Respondent

filed a Proposed Recommended Order on November 16, 1998.

FINDINGS OF FACT

1. On February 24, 1998, Petitioner submitted a

Driveway/Connection Application, Number 98A3940018 to Respondent.

Petitioner's application sought a permit to construct a

driveway/connection to a proposed retail sales office project for

Lot 13, Block 396, Avolon Beach Subdivision, in Santa Rosa

County, Florida. The site of the proposed project is located at

2996 Avolon Boulevard (State Road 281), between the I-10 exit

ramp and San Pablo Street.

STANDING

2. Petitioner entered his name on the application as owner

of the subject property. Petitioner signed the application as

owner with title to the property. He signed the application

certifying that he was familiar with the information contained in

the application and that to the best of the applicant's knowledge

and belief, the information contained therein was true and

correct. Petitioner did not fill out a section of the

application entitled, "Are You An Authorized Representative?"

3. Respondent relied on Petitioner's certification that he

was the owner of the property and processed his application.

4. During the hearing, Petitioner initially testified that

he bought the subject property in February of 1998. There was no

driveway connection from Lot 13 to Avolon Boulevard in February

of 1998.

5. Petitioner did not have a copy of the deed to the

subject property with him at the hearing. He admitted on the

record that a deed indicating his ownership interest was not

filed with the public records in Santa Rosa County. He also

admitted that no such deed existed.

6. Petitioner claims that the land was under contract but

"had not gone to closing yet." Petitioner did not have a copy of

the contract to offer as an exhibit at the hearing.

7. Respondent produced copies of two deeds for the subject

property at the hearing. The most recent of these deeds was

recorded on July 14, 1997. It indicates that the property is

owned by the George H. Moss Trust, George H. Moss, Trustee.

8. Petitioner's post-hearing exhibit consisted of two

documents. The first is a Memorandum Agreement dated February 2,

1998. The memorandum indicates that Tim Oden, Agent for 3/0

Partners, LLC, paid $500 in earnest money as a deposit for the

purchase of the subject property belonging to George Moss, with

the closing to take place on or before April 15, 1998, contingent

on specified terms of purchase.

9. One of the terms of purchase requires proof of legal

access to San Mateo Avenue which is the subject of this

proceeding and has not been fulfilled. Additionally, Petitioner

did not present evidence that any of the other conditions of the

contract have been fulfilled.

10. The Memorandum Agreement is signed by Tim Oden, Agent

for 3/0 Partners, LLC, as buyer and George H. Moss as seller.

11. The second document included in Petitioner's post-

hearing exhibit is a copy of a cancelled check in the amount of

$500 payable to George Moss for the subject property and signed

by Tim Oden. Mr. Moss endorsed the check for deposit.

12. Petitioner's name does not appear anywhere on the

Memorandum Agreement. There is no direct evidence showing

Petitioner's relationship to Tim Oden or 3/0 Partners, LLC. He

has not demonstrated that he has an ownership interest in the

property.

PERMIT APPLICATION

13. In a Notice to Deny Permit dated March 23, 1998,

Respondent advised Petitioner that his application was denied.

Respondent's notice gave the following reasons for denying the

application:

The Limited Access Right of Way and fence

were not shown on the plans. A field review

found this proposed connection within the

Limited Access Right of Way. This section of

State Road 281 is a Limited Access Facility,

in conjunction with I-10. Access to the

property can not be permitted through the

Limited Access Fence or across the Limited

Access Right of Way. Access rights were

acquired for the construction of I-10 and the

interchanges. Access can not be permitted to

the ramps or ramp tapers.

14. On or about April 7, 1998, Petitioner provided

Respondent with a revised Driveway Permit Drawing showing the

Limited Access Right-of-Way and fence.

15. Petitioner admitted in a telephone conversation with

Respondent's permit engineer that a previous owner had been

compensated for the loss of access to Avolon Boulevard when the

I-10 interchange was constructed.

16. The subject property did not have an existing driveway

connection when the I-10 interchange was constructed. The Shell

service station and the used car lot, which are located at the

Avolon Boulevard interchange, had existing driveway connections

before the interchange was constructed.

17. Similarly, driveway sites near the intersection of

Davis Highway, in Escambia County, and I-10, were in existence at

the time the I-10 interchange ramps were constructed. These

existing driveways were allowed to remain after construction of

the ramps. New driveway connections would not be permitted at

these locations. Permits will not be granted if these properties

undergo a substantial change in use which requires a change in

permitting.

18. Petitioner's description of the location of the off

ramp, ramp taper, and limited access area of Avolon Boulevard are

erroneous. The proposed driveway for the subject property is

located in the off ramp lane.

19. Federal highway regulations require control of

connections beyond the ramp terminal of an interchange for at

least 100 feet in urban areas and 300 feet in rural areas. This

control for connections to crossroads must be effected by

purchase of access rights, providing frontage roads, controlling

added corner right-of-way areas, or denying driveway permits.

20. Petitioner's proposed driveway would be located within

300 feet from the end of the taper of the off ramp. Federal

regulations prohibit the issuance of a new connection permit for

a site within that area.

21. Additionally, Petitioner's proposed driveway connection

would cause a safety and operational problem on the state highway

system due to its location in the off ramp of the I-10

interchange.

22. There is no persuasive evidence that Santa Rosa County

has abandoned the street which is adjacent to Lot 13 and the

Shell station, 32nd Avenue. Petitioner did not establish that

there is no legal access from Lot 13 to Avolon Boulevard other

than by issuance of the subject permit.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

24. Petitioner has the burden to prove by a preponderance

of the evidence that he is entitled to bring this appeal, and if

so, whether he is entitled to the permit he seeks. Department of

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

25. Section 120.569, Florida Statutes, states as follows in

pertinent part:

This provisions of this section apply in all

proceedings in which the substantial

interests of a party are determined by an

agency . . .

26. Section 120.52(12), Florida Statutes, defines a "party"

in pertinent part as follows:

(12) Party means:

(a) Specifically named persons whose

substantial interests are being determined in

the proceeding.

(b) Any other person who, as a matter of

constitutional right, provision of statute,

or provision of agency regulation, is

entitled to participate in whole or in part

in the proceeding, or whose substantial

interests will be affected by proposed agency

action, and who makes an appearance as a

party.

27. Before Petitioner can be considered to have a

substantial interest in the outcome of this administrative

proceeding and thus be entitled to appear as a party, he must

show:

. . . 1) that he will suffer injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing, and 2) that

his substantial injury is of a type or nature

which the proceeding is designed to protect.

The first aspect of the test deals with the

degree of injury. The second deals with the

nature of the injury.

Agrico Chemical Co. v. Department of Environmental Regulation ,

406 So. 2nd 478 (Fla. 2nd DCA 1981). Petitioner does not have

standing to bring this appeal under the Agrico test.

28. Petitioner has not presented any persuasive evidence

that he has an ownership interest, legal or equitable, in the

subject property. There is no evidence that he is a partner in

3/0 Partners, LLC, or that he is authorized to represent the

partnership. There is no evidence that Petitioner is authorized

to represent the current owner of the subject property.

29. Rule 14-96.002(21), Florida Administrative Code,

defines property owner as "the person holding recorded title to

property abutting the state highway system and other persons

holding a recorded interest in such property that includes the

right of access." Petitioner has not proved that he is a

property owner as defined by this rule.

30. Even if Petitioner had proved that he was a proper

party to this proceeding, he has not proved that the subject

property is located a sufficient distance from the off ramp of

the I-10 interchange to satisfy federal regulations or that the

proposed driveway would not create safety and operational

problems pursuant to Section 335.181(2) and 335.184(3), Florida

Statutes, Rules 14-96 and 14-97, Florida Administrative Code, and

Title 23, Section 620, Code of Federal Regulations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that Respondent enter a Final Order

dismissing Petitioner's appeal for lack of standing and/or

dismissing Petitioner's appeal on its merits.

DONE AND ENTERED this 14th day of December, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 1998.

COPIES FURNISHED:

Brian F. McGrail, Esquire

Department of Transportation

Mail Station 58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Hugh Allen Oden

8612 Westview Lane

Pensacola, Florida 32514

James C. Myers, Agency Clerk

Department of Transportation

Mail Station 58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel

Department of Transportation

Mail Station 58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.