17-000815 Joe David Riggins And Barbara Jean Riggins vs. Department Of Transportation Status: Closed Recommended Order on Friday, July 28, 2017.

Summary: DOT proved that closing two of three driveways for two lots on State Road 441 would reduce safety risks and improve traffic flow while leaving reasonable access to the property.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE DAVID RIGGINS AND

BARBARA JEAN RIGGINS,

Petitioners,

vs. Case No. 17 - 0815

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Admi nistrative Law Judge John D. C. Newton, II , of the

Division of Administrative Hearings (Division) conducted the

final hearing in this matter on May 23, 2017, by video

teleconference at locations in Tallahassee and Lakeland, Florida.

APPEARANCES

For Petitio ner: Joe David Riggins, pro se

Barbara Jean Riggins, pro se

4858 Myrtle Beach Drive

Sebring, Florida 33872

For Respondent: Richard E. Shine, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

A. Is it necessary for Respondent, the Department of

Transportation (Department), to close two drivew ays on the

property of Petitioners, Joe David and Barbara Jean Riggins?

B. If the driveways are closed, will the property affected

by the driveway closings still have reasonable access to the

State Highway System?

PRELIMINARY STATEMENT

On October 4, 2016, the Department sent Mr. and Ms. Riggins

a Notice of Intent to Modify Driveway Connection. An attached

Roadway Plan Sheet Number 28 identified removal of the eastern

and middle driveways on their property abutting State Road 441.

The Riggins es filed a Pe tition for Formal Administrative Hearing

disputing the proposal. The Department representatives met with

them at the property to discuss the proposed driveway

modifications. The Department and the Riggins es could not agree.

The Department stood by its p lan to close two driveways. The

Riggins es would only agree to closing one.

The Department referred this matter to the Division on

February 7, 2017 , to conduct the final hearing. After three

continuances, the undersigned conducted the hearing on May 23,

2 017. Whether the Department complied with the procedural

requirements for closing a driveway is not an issue in this

proceeding .

The Department presented the testimony of Nicholas

Leon, P.E., Construction Engineer, Project Manager, and Nathan

Kautz, P.E. , District 7 Access Management Engineer. The

Department Ó s Exhibits 1 through 9, 11, and 12 were admitted into

evidence. The DepartmentÓs Exhibit 5 was admitted for a limited

purpose.

Mr. and Ms. Riggins each testified. Their Exhibits 1, 2, 5,

and 9 w ere admitted into evidence. The Riggins es Ó Exhibit 6 was

admitted for a limited purpose.

The parties Ó stip ulated to the applicability of F lorida

Administrative Code C hapters 14 - 96 and 14 - 97 and s ections

334.04(14 ), and 335.18 through 335.188, Florida Stat ute s (2016) . 1/

The undersigned took official recognition of the statutes and

applicable administrative rules as Department Exhibits 6

through 9.

The parties provided a T ranscript. The Department filed a

p roposed r ecommended o rder . It has been conside red in the

preparation of this Recommended Order. The Riggins es did not

file a proposed recommended o rder.

FINDING S OF FACT

1. The parties stipulated to the following facts :

A. On October 4, 2016, t he Department sent Joe David and

Barbara Jean Riggins a Notice of Intent to Modify Driveway

Connection.

B. Mr. and Ms. Riggins received the Notice of Intent to

Modify Driveway Connection on October 8, 2016.

C. The Notice of Intent to Modify Driveway Connection

related to the property located at 964 State Roa d 441 South e ast,

Okeechobee, Florida.

D. The approximate 0.787 acre property has been held by the

Joe David and Barbara Jean Revocable Trust since September 24,

2012.

E. The property is not developed, with the exception of a

boat ramp aligned with the pr opertyÓs westernmost driveway that

is scheduled to remain open. The remainder of the property

consists of asphalt and a bare concrete slab from a demolished

structure.

F. State Road 441 is a part of the state highway system.

2. Mr. and Ms. Riggins own t wo adjacent lots located at

964 State Road 441, Southe ast, in Okeechobee County, Florida.

The Okeechobee County Property Appraiser identifies them as

lots 13 and 14. The lots are vacant. Three driveways exit those

properties. The driveways have been in ex istence since at

least 1992 . The driveways have not gone a year without use.

3. The Department is an agency of the State of Florida. It

regulates access to the state highway system to ensure safe,

efficient, and effective maintenance and operati on of the roads.

4. The Department is planning a resurfacing project for

State Road 441 from State Road 78 to South e ast 30 th Terrace in

Okeechobee County. That approximately two - mile stretch of road

runs past the Rigginses Ó property.

5. The Department intends for the project to enhance

roadway safety through improvements to the roadway surface,

driveway modifications, sign and pavement markings, elevation

corrections, bridge retrofits, and guardrails. The planned

resurfacing project also includes modi fications and improvements

to driveways along State Road 441 and installation of a bicycle

lane adjacent to the Rigginses Ó land. The project is a

significant change to the roadway and the roadway design.

6. As part of the resurfacing project, the Departm ent

conducted an evaluation of modification of all driveways along

the project corridor to improve motorist, bicycl ist and

pedestrian safety and operation of the roadway. When the

Department plans significant changes in roads , it conducts an

evaluation to determine whether existing driveways meet design

standards in conformance with access management act standards.

7. Mr. Leon, Engineer of Record and Project Manager for the

project, conducted the evaluation. He recommended closing the

eastern and middle driveways on the Rigginses Ó two lots.

8. The Department gave the Rigginses Ó notice of the pl an to

close the two driveways. Department representatives reviewed the

plan and the reasons for it with the Rigginses , by telephone and

in person.

9. The Departm ent maintains that closing the driveways is

necessary to improve safety and compliance with the DepartmentÓs

design standards. Because of their age, the driveways are

ÐgrandfatheredÑ and without the substantial changes of the

project would not be subject to current design standards.

10. Most recently, the Rigginses leased the lots to Edison

Power Company for parking utility line trucks. The utility

company used the two lots as if they were one. The lease expired

December 31, 2016. If Edison Power were to resume use of the

lots, there is sufficient room for its truck s to maneuver and to

enter and exit the property using only the westernmost driveway.

11. The eastern driveway is 16 feet wide at its throat

where the driveway meets the road. The throat of the middle

driveway is 27 feet wide. The throat of the western driveway is

35 feet wide. This driveway lines up with a boat ramp on the

other side of the lot. Each driveway is substantially less than

1,320 feet apart from the adjacent driveway.

12. Th e Department has design standards for driveway

dimensions. For rural roadways, like the one involved here, the

size range for driveway throats is 24 feet to 36 feet.

13. Department Rule 14 - 97.003 classifies roadways and

establishes driveway spacing for each class. State Road 441 is a

Class 5 roadway. Its speed limit is 45 miles per hour. The rule

requires driveways on the roadway to be spaced 1,320 feet apart.

The spacing requirement is i mportant for reducing driver

confusion and wreck potentials ca used by multiple turns onto or

from the road in quick sequence.

14. The project design work included examining existing

driveways and their effect on traffic flows and interaction with

motor vehicle, bicycle, and pedestrian traffic on State Road 441.

The Department reasonably focused on limiting conflict points

created by driveways and bringing affected existing driveways

into compliance with current access standards.

15. Closing the two easternmost driveways will reduce

conflict points on the roadway c aused by vehicles entering and

leaving the property. The activity increases risks of crashes

for motor vehicles and for bicyclists who will use the newly

created bike lanes and vehicles entering and leaving the

property. As a rule, limiting the number of driveway connections

promotes better traffic movement and an increased level of safety

and mobility for the system as a whole. The westernmost driveway

on the Rigginses Ó property will p rovide reasonable access to the

property.

CONCLUSIONS OF LAW

16. The Division has jurisdiction over the parties and the

subject matter of this case . §§ 120.569, 120.57(1), and 120.595,

Fla. Stat.

17. The Department initiated this action. Therefore, the

Department bears the burden of proving, by a preponderance of the

ev idence, the allegations in the Notice and plans. See Dep't of

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

18. The Department has broad discretionary authority to

plan and construct roads. Dep't of Transp. v. Lopez - Torres , 526

So. 2d 674, 675 (Fla. 1988); § 334.044, Fla. Stat.

19. Driveway connections on state roads must be permitted

or Ð grandfathered. Ñ See § 335.1825, Fla. Stat.; Fla Admin. Code

R. 14 - 96.011(3)(a). The Rigginses Ó connections to State Road 441

are not permitted. A driveway is Ðgrandfathered" if it was in

existence before July 1, 1988, when access permits were first

required. The Rigginses Ó driveways are Ðgrandfathered.Ñ See

Fla. Admin. Code R. 14 - 96.011(3)(a).

20. A ÐgrandfatheredÑ connection may be modified bec ause of

safety or operational issues. See Fla. Admin. Code R. 14 -

96.011(4)(b)(the Department may modify a Ð grandfathered Ñ

connection "if such modification is determined to be necessary

because the connection would jeopardize the safety of the public

or ha ve a negative impact on the operational characteristics of

the state highway").

21. The Department must allow owners of private property

adjoining a state road to have "reasonable access" to and from

their property. See § 335.18(2)(a), Fla. Stat. Reason able

a ccess is Ðthe minimum number of connections . . . necessary to

provide safe and efficient ingress and egr ess to the State

Highway System . . . .Ñ See Fla. Admin. Code R. 14 - 96.002(25).

22. Rule 14 - 96.015 establishes requirements the Department

must meet when modifying unpermitted and Ð grandfathered Ñ

connections in conjunction with a Department project. It reads

in relevant part as follows:

14 - 96.015 Department Design and Construction

Projects.

When existing connections are modified by a

Departmen t project, access will be provided

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 during 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

Departme nt standards.

* * *

(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 - 96.011(1)(d), F.A.C ., and

Chapter 120 F.S. For p urposes of paragraph

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 safety or operational

problem, and a separate engineering study

shall not be required.

* * *

(5) The Department will bear the cost of

modifica tion of existing approved

connections, necessitated solely by

Department construction projects.

23. The Department has also adopted rule 14 - 96.011. It

establishes standards for modifying unpermitted connections. The

rule reads in relevant part:

14 - 9 6.011 Modification of Connections.

* * *

(3) Unpermitted Connections.

(a) Grandfathered 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

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

considered "grandfathered" and shall not

require the issuance of a permit and may

continue to provide connection to the State

Highway System except as provided in

subsection (4).

* * *

(4) Modification of Gran dfathered

Connections.

* * *

(b) The Department will modify a connection

if such modif i cation 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 oper ational

analysis 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 o f the impact 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 proper ty owner or lessee 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 accorda nce w ith 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 changes have occurred or if the

connection is found to cause a safety or

o perational 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 corrected or that a written

agreement on a schedule for the correction be

approved by the Department within 30 days of

receipt of the notice.

* * *

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 the hazard or correct the

situation.

* * *

(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.

24. The Department has complied with the requirements of

the law and applicable regulations. The evidence establishes

that closing the eastern and middle driveways on the Rigginses Ó

property wil l improve safety. The western driveway will provide

reasonable access to their property.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Department of

Transportation, enter a final order a pproving the closure of the

easternmost and middle driveways on the property of Respondents,

Joe David and Barbara Riggins, as part of the Department's State

Road 441 Re surfacing Project.

DONE AND ENTERED this 28th day of July , 2017 , in

Tallahassee, Leon C ounty, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

T his 28th day of July, 2017 .

ENDNOTE

1/ All references to the Florida Statutes are to the 2016

codification unless otherwise noted.

COPIES FURNISHED:

Joe David Riggin s

Barbara Jean Riggins

4858 Myrtle Beach Drive

Sebring, Florida 33872

(eServed)

Richard E. Shine, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

Andrea Shulthiess, Clerk of Agency Proc eedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tation 58

Tallahassee, Florida 32 3 99 - 0450

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tation 57

Ta llahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tation 58

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.