98-002905 John R. Clark vs. Department Of Transportation Status: Closed Recommended Order on Thursday, February 18, 1999.

Summary: Since Petitioner`s driveway connection created a safety and operational problem, and there was a reasonable access to Petitioner`s property, the Department`s action in closing Petitioner`s driveway connection was in accordance with the statutes and rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN R. CLARK, )

)

Petitioner, )

)

vs. ) Case No. 98-2905

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on September 4, 1998, in Sebring, Florida.

APPEARANCES

For Petitioner: Ross MacBeth, Qualified Representative

MacBeth Associates, LTD.

2543 U.S. Highway 27, South

Sebring, Florida 33870

For Respondent: Bryan F. McGrail, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Was the Department of Transportation's action in closing an

existing driveway connection to US Highway 27 from the property

located at 2623 US Highway 27, South in Sebring, Florida, in

compliance with Chapter 14-96, Florida Administrative Code, and

the Access Management Act?

PRELIMINARY STATEMENT

By a Notice of Intent to Change Driveway Connection (Notice)

dated December 17, 1997, the Department of Transportation

(Department) advised Petitioner that, based on an evaluation of

existing driveway connections as part of the road improvements to

State Road 25 (US 27) in Sebring, Florida, the Department had

determined that Petitioner's existing driveway connection onto

US 27 would cause a safety or operational problem on the State

Highway System. By letter dated January 17, 1998, Petitioner

requested an administrative hearing on the closing of the

existing driveway connection. By letter dated June 29, 1998, the

Department referred the matter to the Division of Administrative

Hearings for the assignment of an Administrative Law Judge and

for the conduct of a formal hearing.

At the hearing, Petitioner testified in his own behalf and

presented the testimony of Mark MacBeth and Tom Deer.

Petitioner’s Exhibit No. 1 was received as evidence. The

Department presented the testimony of Debra Snyder, Gary Amig,

Ronald Schlegel, and Tom Deer. The Department’s Exhibits Nos. 1

through 8 were received as evidence.

At the close of this proceeding, the Department requested

that the parties be allowed 30 days after the filing of the

transcript in this proceeding to file their respective proposed

recommended orders. Petitioner concurred in this request. The

request was granted with the understanding that the time

constraint imposed under Rule 28-106.216(1), Florida

Administrative Code, was waived in accordance with

Rule 28-106.216(2), Florida Administrative Code. A transcript of

this proceeding was filed with the Division on September 21,

1998. The parties timely filed their respective Proposed

Recommended Orders under the extended time frame. Subsequent to

the filing of the Proposed Recommended Orders but before the

issuance of a Recommended Order, Petitioner filed a motion to

reopen hearing in order to receive additional evidence. The

Department timely filed a response in opposition to Petitioner's

motion. By order dated December 30, 1998, Petitioner's Motion to

Reopen Hearing was denied.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. The driveway connection to US Highway 27 which the

Department has closed, and is the subject matter of this

proceeding, served the property located at 1623 US Highway 27

South, Sebring, Florida (Merrill Lynch property) which is

situated at the intersection of Highway 27 and Sparta Road in

Sebring, Florida, and abuts both US 27 and Sparta Road.

2. MacBeth Associates, LTD., a Florida limited partnership,

is presently the owner of the Merrill Lynch property. However,

MacBeth Associates, LTD. (MacBeth) did not acquire the Merrill

Lynch property until after the commencement of this proceeding.

3. Ross MacBeth, sole owner of a corporation that is one of

the general partners of MacBeth, appeared on behalf of MacBeth.

However, Ross MacBeth did not file a motion or request that

MacBeth be made a party to this proceeding.

4. John Clark, Petitioner, is employed by Merrill Lynch who

was leasing the Merrill Lynch property at the time the Department

made the decision to close the driveway connection which is the

subject matter of this proceeding.

5. On December 17, 1997, the Department issued a Notice of

Intent to Change Driveway Connection to Petitioner advising that

due to the road improvement project on State Road 25 (US 27),

Petitioner's existing driveway connection onto US 27 would be

closed because it would cause a safety or operation problem on

the State Highway System. This driveway connection is identified

as No. 73 on the Department's Access Management Plan.

6. Between Lakeview Avenue and Highland Avenue which

includes the Sparta Road and US 27 intersection and Petitioner's

driveway connection, US 27 is classified as level five under the

Department's Access Management Classifications for Highlands

County which was signed into effect by the Department's

District I Secretary in January 1993.

7. The Department utilizes the Florida Department of

Transportation Roadway and Traffic Design Standards (Design

Standards) as guideline specifications for designing and building

driveway connections onto state roads.

8. Aim Engineering and Surveying, Inc. prepared a

Connection Access Management Study (Study) for the Department for

the project which is the subject matter of this proceeding.

Ronald L. Schlegel, Professional Engineer, registered in the

State of Florida, who is qualified in transportation engineering

was the engineer of record for the Study.

9. The Study recommends the removal of Petitioner's

driveway connection because of potential vehicle movement

conflicts with bank's driveway connection and that site access is

provided from Sparta Road which connects with US 27.

10. The Merrill Lynch property has two access points off

Sparta Road, one adjacent to the Merrill Lynch building and one

connecting to the rear parking area of Merrill Lynch.

11. Access Management Standards (Standards) require a

clearance of 230 feet between the curb line of the intersection

and curb line of the access immediately downstream of the

intersection. Additionally, the Standards require a minimum of

240 feet between access points (driveway connections).

12. The Merrill Lynch driveway connection (driveway

connection 73) does not conform to the Standards in that it is

approximately only 90 feet from its curb line to the curb line of

the intersection of US 27 and Sparta Road. Additionally, it

appears that the curb line of driveway connection 73 and the curb

line of the bank's driveway connection (driveway connection 72)

is considerably less than 230 feet and therefore, does not

conform to the 230 foot requirement of the Standards.

13. The Standards require a 35 foot turning radius for

driveway connections on US 27. Conditions on US 27 at driveway

connections 72 and 73 would not allow a 35-foot turning radius.

Therefore, since the bank had no other access to US 27, the

closing of driveway connection 73 was necessary to prevent any

safety and operational problems existing at driveway connections

72 and 73.

14. One of the criteria used in the Study to evaluate

existing driveway connections was:

C. Use of joint driveways, if adjacent

property owners agree with such use, where

such use will solve a safety or operation

problem. A joint use agreement shall be

executed by property owners.

15. The Department must design driveway connections to

connect to a paved point where the Department's right-of-way

joins private property.

16. The Merrill Lynch property that is adjacent to the bank

property is not paved. Therefore, driveway connection 72 could

not be constructed by the Department such that it straddled the

bank property and the Merrill Lynch property which would have

allowed joint use of driveway connection 72.

17. In response to a contact by Representative Spratt, the

Department did a field review of driveway connection 73 and

confirmed that joint-use access was the best alternative for

Petitioner. Although joint use of driveway connection 72 is

possible, Petitioner has not pursued this matter with the bank.

18. Also, in response to a contact by Representative

Spratt, the Department conducted a traffic count at the

intersection of US 27 and Sparta Road.

19. From the results of this traffic-count study, it was

concluded, barring joint use of driveway connection 72, that

access to the Merrill Lynch property off of Sparta Road created

less safety and operational problems than would driveway

connection 73 if it were allowed to remain open, notwithstanding

any evidence to the contrary presented by Petitioner which I did

not find to be totally credible.

20. While some of the traveling public (including

Petitioner and his customers) may be inconvenienced as a result

of the closure of driveway connection 73, it is prudent, from a

traffic engineering and safety perspective, to close driveway

connection 73.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1), Florida Statutes.

22. 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 (Fla. 2d DCA 1981). To meet this burden, the

Department must establish facts upon which its allegations are

based by a preponderance of evidence. Section 120.57(1)(h),

Florida Statutes.

23. Section 334.044(14) Florida Statutes, provides as

follows:

Department; powers and duties.--The

department shall have the following general

powers and duties:

* * *

(14) To establish, control, and prohibit

points of ingress to, and egress from, the

State Highway System, the turnpike, and other

transportation facilities under the

department's jurisdiction as necessary to

ensure the safe, efficient, and effective

maintenance and operation of such facilities.

24. Sections 335.181(1)(a) and (2)(a), Florida Statutes,

provide as follows:

(1) It is the finding of the Legislature

that:

(a) Regulation of access to the State

Highway System is necessary in order to

protect the public health, safety, and

welfare, to preserve the functional integrity

of the State Highway System, and to promote

the safe and efficient movement of people and

goods within the state.

(2) 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 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. (Emphasis furnished.)

25. Section 335.184(3), Florida Statutes, provides 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.

26. Rule 14-96.011(1)(d), Florida Administrative Code,

provides as follows:

Closing a connection, (unless it has an

adverse effect on traffic safety or

operations) resurfacing, or bringing a

connection to current Department design

standards, at the existing location may be

considered a safety upgrade as in this rule

chapter and will not require a permit.

(1) Validity of Existing Permits. All

connection permits issued by the Department

prior to the effective date of this rule

chapter remain valid until revoked or

modified pursuant to the criteria set forth

in this rule chapter. The Department may

initiate action to revoke or modify any

permit or existing permitted connection if:

* * *

(d) Such revocation or modification is

determined to be necessary because the

connection poses a current or potential

safety or operational problem on the State

Highway System. This problem must be

substantiated by an engineering study signed

and sealed by a professional engineer

registered in the State of Florida qualified

in transportation engineering. (Emphasis

furnished.)

27. The record is clear that the Department has met its

burden to show that driveway connection 73, as it existed,

created a safety and operational problem and that Petitioner has

been given a less hazardous and reasonable access to US 27

through Sparta Road. The Department has also met its burden to

show that the closing of driveway connection 73 was in compliance

with the State Highway System Access Management Act, Sections

335.18-335.188, Florida Statutes, and Chapter 14-96, Florida

Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Transportation

enter a final order denying Petitioner's request to re-open

driveway connection 73.

DONE AND ENTERED this 18th day of February, 1999, in

Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of February, 1999.

COPIES FURNISHED:

Thomas F. Barry, Secretary

Department of Transportation

ATTN: James C. Myers,

Clerk of Agency Proceedings

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Ross MacBeth, Qualified Representative

MacBeth Associates, LTD.

2543 U.S. Highway 27, South

Sebring, Florida 33870

John Clark

c/o Merrill Lynch

2623 U.S. Highway 27, South

Sebring, Florida 33870

Brian F. McGrail, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

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.