11-004463 Kyriakou Revocable Trust Agreement vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, November 30, 2011.

Summary: The Department of Transportation may close one of two driveways connecting Petitioner's property to U.S. Highway 19.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KYRIAKOU REVOCABLE TRUST )

AGREEMENT , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4463

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMEND ED ORDER

On October 18, 2011 , an administrative hearing in this case

was held by video teleco nference in Tampa and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitio ner: Soterios Kyriakou, pro se

Kyriakou Revocable Trust Agreement

1010 Peninsula Avenue

Tarpon Springs, Florida 34689

For Respondent: Kathleen P. Toolan, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

The i ssue in the case is whether the Department of

Transportation (Department) propos al to close a driveway

connection between a state highway and property owned by the

Kyriakou Revocable Trust Agreement (P etitioner) should be

approved.

PRELIMINARY STATEMENT

By letter dated February 5, 2010 , the Department notified

the Petitioner that, as part of a highway construction project

in Pasco County, Florida, the Department would be closing a

connection between U.S. Highway 19 ( US 19 ) and the Petitioner ' s

property.

By letter dated February 26, 2010, the Petitioner objected

to the proposal and req uested an administrative hearing. On

September 1, 2011, the Department forwarded the request to the

Division of Administrative Hearings, which scheduled and

conducted the proceeding .

At the hearing, the Petitioner presented the testimony of

one witness. The Department presented the testimony of five

witnesses and had Exhibits 1 through 4, 6 , 7, and 12 through 14

admitted into evidence . The T ranscript of the hearing was filed

on October 31, 2011. The Department filed a Proposed

Recommended Order on Novem ber 10, 2011.

FINDINGS OF FACT

1. The Department is the state agency responsible for

regulating access to the state highway system.

2. The Department has commenced construction of highway

improvements on US 19 in Pasco County, Florida. US 19 is a

state highway, als o identified as State Road 55.

3. The project is known as the " US 19 Continuous Right

Turn Lane Safety Improvement Project. " The Pasco County portion

of the project is 11 miles long, four miles of which are

currently under construction.

4. The project is intended to improve the safety of the

highway by reducing the frequency of rear - end collisions, to

improve pedestrian safety , and to facilitate mass transit

operations. The project includes installation of a continuous

right - turn lane, wher e feasible, as well as pedestrian sid ewalks

and median alterations.

5. The addition of a continuous turn lane will allow

drivers to execute right turns after leaving traffic lanes,

thereby reducing the incidence of rear - end collisions.

6. The Department is not planning to acquire additional

property. The project is being constructed within existing

right - of - way.

7. The Petitioner owns a parcel of commercial property

located at 1733 U.S. Highway 19, in Holiday, Pasco County,

Florida. The parcel has been owned since 1986 by Soterios

Kyriakou and Nomiki Kyriakou , as husband and wife, who

transferred owners hip to the Petitioner in 2005.

8. The parcel is platted as a single lot and is bordered

to the east by US 19 and to the north by a county road, Buena

Vi sta Lane. Two driveway s connect the parcel to US 19.

9. One of the project goals was to reduce the numerous

driveways that connect private parcels to US 19. Limiting

driveway connections to the highw ay promotes safe traffic flow.

10. In evaluating the four - mile segment prior to design,

the Department reviewed more than 200 existing connections

between the highway and adjoining parcels for compliance wi th

safety and design criteria.

11. Driveway width and space parameters are generally

based on vehicle count and highway classification. Many of the

existing connections were excessively wide or insufficiently

spaced and failed to comply with appropriate design - safety

standards. Improperly - sized or located connections increase the

opportunity for accident s betw een cars and with pedestrians.

12. In order to improve highway safety, the Department

focused on limiting " conflict points " and providing for

additional separation where possible, while providing for

continued acces s at the existing connections.

13. The relevant design standards applicable to the

Petitioner ' s parcel would normally limit the width of driveways

to 24 feet and require a minimum separation of 440 feet between

driveways.

14. The driveway connections between US 19 and the

Petitioner ' s pa rcel exceed the appropriate width parameters. On

the east side of the Petitioner ' s parcel, there are two separate

40 - foot wide driveway connections to US 19, divided by a 25 - foot

wide grassy area.

15. The Petitioner ' s driveway connections are

substantial ly closer than the 440 - foot minimum requirements.

The northernmost connection between the parcel and US 19 is

approximately 40 feet from the intersection of US 19 and Buena

Vista Lane. The southernmost connection between the parcel and

US 19 is approxima tely 105 feet from the corner of US 19 and

Buena Vista Lane. The two driveways ar e approximately 25 feet

apart.

16. To the north side of the Petitioner ' s parcel, there is

an 80 - foot - wide connection to Buena Vista Lane, which will n ot

be affected by the p roject.

17. Although the Petitioner ' s parcel is not of sufficient

width to allow compliance with the spacing standards, the

Department has not proposed to eliminate both connections

between the parcel and US 19. Similarly, the Department has not

proposed to reduce the width of the remaining southernmost

connection between the Petitioner ' s parcel and US 19. The

Department has proposed only the closure of the northerly

connection between the Petitioner ' s parcel and US 19.

18. Continued use of the Petiti oner ' s existing

northernmost connection to the improved US 19 would present a

significant conflict point for drivers entering US 19 from Buena

Vista Lane and drivers intending to enter nearby Alternate

US 19, with drivers turning onto or o ut of the Petitio ner ' s

parcel.

19. There is an existing stop sign on Buena Vista Lane at

the intersection with US 19. Persons driving east on Buena

Vista Lane execute right turns at the stop sign and travel south

on US 19. After the project is completed, such drivers wi ll

likely turn south into the new continuous turn lane before

merging east into through lanes. The existing northernmost

driveway located only 40 feet to the south of the intersection

presents a conflict point for vehicles entering ont o US 19 from

Buena V ista Lane.

20. A few hundred feet south of the Buena Vista Lane/US 19

intersection, US 19 connects to Alternate US 19. Drivers

intending to travel west onto Alternate US 19 begin to move

towards the right lane near the area of the Petitioner ' s parcel.

A fter completion of the project, such drivers will likely be

moving towards the new continuous turn lane, increasing the

hazard presented by the Petitioner ' s e xisting northernmost

driveway.

21. The Department performed appropriate feasibility and

engineeri ng studies prior to proposing the closure of the

connection at issue in this proceeding. There was no evidence

presented that would suggest the studies were inacc urate or

otherwise unreliable.

22. There were multiple opportunities for public

involvement during project development as well as direct contact

between each impacted owner. The Department specifically

notified the Petitioner of the proposal to close the

northernmost connection between US 19 and the Petitioner ' s

parcel. On more than one occasio n, project representatives met

with the Petit ioner to discuss the proposal.

23. The closure of the Petitioner ' s northernmost

connection to US 19 will improve vehicular and pedestrian

safety. The southernmost 40 - foot driveway on US 19 and the 80 -

foot Buen a Vista Lane connection provide reasonable access to

the Petitioner ' s parcel. There are no practical alternatives

that would improve vehicular and pedestrian safety while

maintaining reasonable access to the Petitioner ' s parcel from

US 19.

24. The Petiti oner asserted that the closure of the

northerly connection will restrict access to his parcel, will

significantly decrease the fair market value of the property,

and will result in a loss of tenants and revenue. There was no

credible evidence presented in support of the assertions , and

they have been rejected.

25. The Petitioner also asserted that flooding of Buena

Vista Lane during rainstorms cause drivers to cross his property

to avoid standing water. There was no evidence presented that

the closure of the northernmost US 19 connection will have any

impact on the referenced driver behavior or on any existing

drainage issues.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

pr oceeding. §§ 120.56 & 120.57, Fla. Stat. (2011).

27. The Department has the burden of proving by a

preponderance of the evidence that the northern connection

between US 19 and the Petitioner ' s parcel should be closed.

Dep ' t. of Transp. v. J.W.C. Co. Inc . , 396 So. 2d 778 (Fla. 1st

DCA 1981). The burden has been met.

28. The Department has the authority to control points of

ingress to, and egress from, highways under the Department ' s

jurisdiction " to ensure the safe, efficient, and effective

maintenance and operation of such facilities . " § 334.044 (14),

Fl a. Stat . (2011).

29. Section 335.182, Florida Statutes (2011) , states as

follows:

335.182 Regulation of connections to roads

on Sta te Highway System; definitions. --

(1) Vehicular access and connect ions to or

from the State Highway System shall be

regulated by the department in accordance

with the provisions of this act in order to

protect the public health, safety, and

welfare.

(2) The department shall adopt, by rule,

administrative procedures for its issuance

and modification of access permits, closing

of unpermitted connections, and revocation of

permits in accordance with this act.

(3) As used in this act, the term:

(a) " Connection " means driveways, streets,

turnouts, or other means of provi ding for the

right of reasonable access to or from the

State Highway System.

(b) " Significant change " means a change in

the use of the property, including land,

structures or facilities, or an expansion of

the size of the structures or facilities

causing an increase in the trip generation of

the property exceeding 25 percent more trip

generation (either peak hour or daily) and

exceeding 100 vehicles per day more than the

existing use.

30. The Department has adopted rules governing the

modification of no nconforming highway connections. Florida

Administrative Code Rule 14 - 96.015 states, in relevant part, as

follows:

14 - 96.015 Department Design and Construction

Projects.

When existing connections are modified by a

Department project, access will be provi ded

to abutting properties, subject to reasonable

regulation as referred to in Section

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

feasible, this new access will be consistent

with adopted Department connection standards.

(1) Corridors will be examined du ring the

preliminary engineering and design phases to

determine if existing connections, median

openings, and signals spacing and design

standards are in conformance, or can be

brought into conformance, with adopted

Department standards .

(2) When a permi tted or grandfathered

connection is modified as part of a

Department construction project, and not due

to a significant change, no additional permit

shall be required.

(3) Where connections are to be modified as

part of a Department construction project,

and the Department is not planning to acquire

any portion of the property for the project,

the Department will provide notice and

opportunity for an administrative proceeding

pursuant to Rule 14 - 96.0011, F.A.C. , and

Chapter 120, F.S. For purposes of para graph

14 - 96.011(1)(d), F.A.C., construction plans

for a Department project signed, sealed, and

dated by a Professional Engineer registered

in the State of Florida shall substantiate a

connection ' s non - conformance with Department

standards or potential safe ty or operational

problem, and a separate engineering study

shall not be required.

* * *

(5) The Department will bear the cost of

modification of existing approved connections

necessitated solely by Department

construction projects. ( e mphasis a dded ) .

31. The Department has adopted rules governing the

modification of unpermitted connections. Rule 14 - 96.011, states,

in relevant part, as follows:

14 - 96.011 Modification of Connections.

* * *

(3) Unpermitted Connections.

(a) Grandfat hered Connections to the State

Highway System. Connections permitted or in

existence prior to July 1, 1988, use of which

have never been discontinued as described in

subparagraph 14 - 96.005(2)(c)3., F.A.C., are

considered " grandfathered " and shall not

requ ire the issuance of a permit and may

continue to provide connection to the State

Highway System except as provided in

subsection (4).

(b) Unpermitted/Non - Grandfathered

Connections. All other unpermitted

connections are subject to closure in

accordance w ith paragraph (5)(b).

(4) Modification of Grandfathered

Connections.

(a) The Department will require that a

permit be obtained in accordance with

subsection 14 - 96.005(3), F.A.C., pursuant to

the provisions of Section 335.187(1), F.S.,

if significant ch anges have occurred.

(b) The Department will modify a connection

if such modification is determined to be

necessary because the connection would

jeopardize the safety of the public or have a

negative impact on the operational

characteristics of the state highway. The

problem may be substantiated by an

engineering study signed, sealed, and dated

by a professional engineer registered in the

State of Florida. Such engineering study

shall consider the following:

1. Analysis of accidents or operational

ana lysis directly involving the connection or

similar connections, or a traffic conflicts

analysis of the site.

2. Analysis of the impact modification of

the connection will have on maintenance or

safety on the public road system.

3. Analysis of the impac t modification of

the connection will have on traffic patterns

and circulation on the public road system.

4. The principles of transportation

engineering as determined by generally

accepted professional practice.

(c) If the Department acts to modify a

connection, the Department shall offer an

opportunity to meet on site with the property

owner or designated representative. The

Department will take into consideration the

following:

1. Documents, reports, or studies obtained

by the property owner or les see and provided

to the Department.

2. Alternative solutions proposed by the

property owner.

(5) Notification Process for Modification of

Unpermitted Connections. Notice of the

Department ' s intended action will be provided

in accordance with Rule Chap ter 28 - 106,

F.A.C. The Department ' s action will become

final unless a timely petition for a hearing

is filed in accordance with Rule Chapter 28 -

106, F.A.C. In order to be timely, the

petition must be filed with the Department ' s

Clerk of Agency Proceeding s within 21 days

after receipt of the Department ' s notice, in

accordance with Rule Chapter 28 - 106, F.A.C.

(a) The Department shall give written notice

to the property owner, with a copy to the

occupant, for a grandfathered connection if

significant chang es have occurred or if the

connection is found to cause a safety or

operational problem (as specified in this

rule chapter). The notice will identify the

specific information regarding the safety or

operational problem and request that the

problem be corr ected or that a written

agreement on a schedule for the correction be

approved by the Department within 30 days of

receipt of the notice.

1. If the reason for the modification is due

to significant change the notice will state

the basis of the Department ' s determination

and require the filing of a permit

application by a specified date. Where the

Department ' s requirement to file an

application has become final and no timely

application has been filed, the Department

will take immediate action to modify t he

connection in accordance with the notice at

the owner ' s expense.

2. If the reason for the modification is a

safety or operational problem, the notice

will state the basis of the Department ' s

determination and describe the changes

necessary to reduce t he hazard or correct the

situation.

(b) If a timely request for an

administrative proceeding is filed, or a

permit application is filed within the

21 days, no further action shall occur until

review of the application or the

administrative proceeding is complete. If

the connection is not closed and no timely

application or request for an administrative

proceeding is filed, the Department will take

immediate action to install barriers across

or modify the connection at the property

owner ' s expense.

1. I f a timely application is approved, the

Department may allow the existing connection

to be used for a period of time specified or

until the connection specified in the permit

application is constructed and the existing

connection is closed. If necessary t o ensure

safety and highway integrity, modifications

of unpermitted connections will be required

by the Department as a requirement of permit

approval, subject to the requirements of this

rule chapter and Chapter 120, F.S. If the

application is denied, th e Department shall

notify the property owner or lessee of the

denial, with a copy to the occupant, and

shall immediately close the unpermitted

connection(s), subject to the provisions of

this rule chapter and Chapter 120, F.S.

2. In lieu of filing an app lication, the

property owner or lessee may challenge the

requirement to file a permit application by

filing in accordance with Rule Chapter 28 -

106, F.A.C., a timely written request (within

21 days of receipt of notice) for an

administrative proceeding stat ing the reasons

why a permit is not required for the

connection. In such a case, final action to

modify the unpermitted connection shall be

taken in accordance with the results of the

administrative proceeding.

(6) Responsibility for Costs of Correcting

Deficiencies. The property owner and current

user of the connection shall be responsible

for the costs of modifications required

pursuant to actions taken in accordance with

the procedure in Rule 14 - 96.011, F.A.C.

32. In this case, the Department has f ully complied with

the requirements of statute and administrative rule set forth

herein. The evidence clearly establishes that the closure of the

northernmost connection between the Petitioner ' s parcel and US 19

will improve vehicular and pedestrian safet y. The remaining

southernmost connection between the Petitioner ' s parcel and

US 19 provides reasonable access to the Petitioner ' s parcel from

the state highway. There are no reasonable alternatives that

would improve safety and provide reasonable access from US 19 to

the Petitioner ' s parcel. The Petitioner offered no credible

evidence to support the assertions made in the written request

for hearing or raised during th e hearing on October 18, 2011.

RECOMMENDATION

Based on the foregoing Findings of Fact a nd Conclu sions of

Law, it is RECOMMENDED that the Department of Transportation

issue a final order approving the closure of the northernmost

driveway connection located at 1733 U.S. Highway 19, in H oliday,

Pasco County, Florida.

DONE AND ENTERED this 30th day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November, 2011 .

COPIES FURNISHED :

Kathleen P . Toolan, Esquire

Department of Transportation

605 Suwannee Stre et, Mail Station 58

Tallahassee, Florida 32399 - 0458

S o te rios Kyriakou

Kyriakou Revocable Trust Agreement

1010 Peninsula Avenue

Tarpon Springs, Florida 34689

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Gerald B Curington, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Ananth Prasad, Secretary

Depar tment of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomme nded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.