19-002224 Sakata Seed Corporation vs. Department Of Transportation Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, May 31, 2019.

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida

SAKATA SEED CORPORATION,

Petitioner,

v. DOT CASE NO.: 19-008

STATE OF FLORIDA DEPARTMENT OF

TRANSPORTATION,

Respondent.

FINAL ORDER

On January 28, 2019, Sakata Seed Corporation (Sakata) filed a Petition for Formal

Administrative Hearing (Petition). Before the Department of Transportation (Department)

reviewed the Petition to determine whether it was legally sufficient, the Department and Sakata

agreed to place the case in abeyance to allow the parties an opportunity to discuss a resolution and

to consult with the adjacent property owner Troyer Brothers (Troyer) regarding a joint access

easement. On March 7, 2019, Sakata requested that the matter be forwarded to the Division of

Administrative Hearings (DOAH) and indicated that it had made no progress in discussions with

Troyer.

On March 28, 2019, the Department issued an Order of Dismissal without Prejudice as the

Petition was not in substantial compliance with the Section 120.54(5), Florida Statutes. On

April 17, 2019, Sakata filed an Amended Petition for Formal Administrative Hearing citing to

Sections 120.54(5)(b), 120.569, and 120.57, Florida Statutes and Florida Administrative Code

Rules 14-96.015(3), 14-96.011 and Chapter 28-106. The Sakata Amended Petition for Formal

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Administrative Hearing is alleged to be in response to the Department's construction project

number 425841-3 (the "Project") for the widening of State Road 82 and the installation of

restrictive medians. Sakata's Statement of Relief requests that the Department modify its current

construction plans to consolidate Sakata Road and Troyer Brother Road into a shared access

driveway.

On April26, 2019, the Department referred the Sakata Amended Petition to DOAH for an

administrative hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes. The

Department incorporated Sakata's requested relief and identified the issue as follows:

ISSUE: Whether Sakata Corporation has standing to require the Department to

modify its current construction project for FPID 425841-3 to consolidate Sakata

Road and Troyer Brother Road into a shared access driveway that will connect to

an expanded four-lane State Road 82 via a full access median, located one-half on

the Sakata property and one-half on the Troyer Brothers property, and limited to

current farming-related traffic to the exclusion and prohibition of mining-related

heavy traffic on Troyer Brothers property .

On May 8, 2019, the Administrative Law Judge (ALJ) issued an Order to Show Cause and

stated:

Section 120.569 (I), Florida Statutes, grants jurisdiction to DOAH in proceedings

in which the substantial interests of a party are determined by an agency and there

are disputed issues of material fact. Having reviewed the Amended Petition, it

appears as though the Petitioner's substantial interests are not impacted by

Respondent's planned construction of a restrictive median. It is, therefore,

ORDERED that the parties shall have 7 days from the date of this Order to show

cause in .writing why this case should not be closed and jurisdiction relinquished to

the Department of Transportation.

On May 9, 2019, Sakata filed an Unopposed Motion for Extension of Time to File

Responses to Order to Show Cause which was granted by the ALJ extending the filing date to

May 22, 2019. The Department filed its Response to Order to Show Cause on May 22, 2019,

along with the supporting Affidavit of Jennifer Marshall, the Project Development Manager for

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the State Road 82 Project. Sakata's Response to the Order to Show Cause was filed at DOAH

after 5 p.m. on the due date and was noted as filed on May 23, 2019, by the DOAH clerk.

On May 31, 20 19, following receipt of the Parties' Responses to the Order to Show Cause,

the ALJ issued an Order Closing File and Relinquishing Jurisdiction to the Department finding

that:

Inasmuch as the undisputed facts demonstrate that Sakata lacks standing to

maintain the instant action, there remain no disputed issues of fact that need to be

resolved in order to dispose of this matter. Accordingly, the undersigned, pursuant

to section 120.57 (1) (i), hereby relinquishes jurisdiction to the Department of

Transportation for final disposition, with the recommendation that the instant action

be dismissed for lack of standing.

FINDINGS OF FACT

The Department adopts the ALJ's Findings of Fact m the Order Closing File and

Relinquishing Jurisdiction to the Department as follows:

1. The Amended Petition does not allege that the planned widening of SR 82 will

alter, close, or relocate the point at which Sakata Road links to SR 82.

2. The Amended Petition asserts that Sakata's substantial interests are impacted by

the Department's planned construction of a raised median on SR 82 in front of the Sakata Property,

the result of which will eliminate the ability to make left turn-in and left turn-out movements into

and out ofthe Sakata Property.

3. Additionally, the Amended Petition also asserts that the Department failed to

provide Sakata with notice of the Department's intended actions as required by Florida

Administrative Code Rule 14-96.0 15(3).

4. The Department does not dispute that the planned widening of SR 82 will include

the addition of a restrictive median, which will eliminate left turn-in and left turn-out movements

into and out of the Sakata Property. As to Sakata's "notice" allegations, the Department contends

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that the notice provlSlons set forth in Florida Administrative Code Rule 14-96.015(3) are

inapplicable to the instant matter because a restrictive median is not an "access connection

modification" as contemplated by the rule and related statutes. 1

5. It has long been the case, and the courts have consistently held, "that decisions

concerning the initial plan, road alignment, traffic control device installation, or the improvement

of roads ... are not matters which would subject a governmental. entity to liability, because these

activities are basic capital improvements and are judgmental, planning-level functions." DOT v.

Konney, 587 So. 2d 1292, 1294 (Fla. 1991). The Florida Supreme Court "and the district courts

of appeal have established the principle that traffic control methods ... are judgmental, planning-

level decisions, which are not actionable." Id. at 1295. A governmental entity's decision to build

or modernize a particular improvement is a discretionary judgmental function with which the

courts will not interfere. Trianon Park Condo. Ass'n v. Cit y of Hialeah, 468 So. 2d 912 (Fla.

1985). Furthermore, it is well-established that the design of a highway median is a planning-level

l/ Sakata also contends that the Department failed to provide notice of its intended action

as required by Section 3 3 5 .199(1 ), Florida Statutes. This statute, in relevant part, requires that

when the Department intends to "erect median barriers modifying currently available vehicle

turning movements," the Department is to notify abutting property owners at least 180 days before

the design of the project is finalized so that the property owners can "provide comments to the

department regarding potential impacts of the change." Sakata does not contend that it was denied

the opportunity to provide comments to the Department regarding the project. In the response to

the Order to Show Cause issued herein, the Department notes that Sakata "already participated in

a Public Hearing and provided comments concerning the design of the median" and that "actual

Notice" was provided on May 15, 2008, and October 4, 2016. Given the limited nature of the

referral by the Department to DOAH, the issue of notice under Section 335.199 is not properly

before the undersigned. Nevertheless, given that Sakata provided comments to the Department,

and there are no allegations to the contrary, it is likely the case that Sakata waived its rights as to

this issue. See Am. Somax Ventures v. Touma, 547 So. 2d 1266, 1268 (Fla. 4th DCA

1989)(waiver may be implied by conduct).

Paragraph 3 6 of the Amended Petition alleges that Section 3 3 5 .199(1) "establishes as a

matter of law that the installation of a median is an access connection modification .... " In a

Section 120.57(1) proceeding, DOAH lacks jurisdiction to consider issues "as a matter of law"

when there are no disputed issues of material fact, as is the case herein.

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function. C yg ler v. Presjack, 667 So. 2d 458 (Fla. 4th DCA 1996). Accordingly, if the law does

not allow for legal recourse with respect to a planning-level function, then there are no legally

cognizable interests that will be recognized under Chapter 120, Florida Statutes. 2

6. Florida Administrative Code Rule 14-96.002(19) defines a "median" as "the

portion of a divided highway separating vehicular traffic traveling in opposite directions." Florida

Administrative Code Rule 14-96.002(27) defines a "restrictive median" as "the portion of a

divided highway physically separating vehicular traffic traveling in opposite directions [and are]

physical barriers that restrict movement of traffic across the median such as a concrete barrier, a

raised curb island guard rail, or a grassed or swaled median." Florida Administrative Code Rule

14.96.002(33) provides that "medians, median openings, and tum lanes" are considered as traffic

control features and devices "as described in the Manual on Uniform Traffic Control Devices

(MUTCD), (incorporated by reference in Rule 14-15.010, F.A.C.)."

7. Section 335.182, Florida Statutes, provides as follows:

( 1 ) Vehicular access and connections 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:

2 Consistent with the concept of design immunity, it is well established, in the context of eminent

domain, that "a landowner has no property right in the continuation or maintenance of traffic flow

past his property." Div. of Admin . . State De p 't ofTrans p . v. Ca p ital Plaza. Inc., 397 So. 2d 682,

683 (Fla. 1981). See also Rubano v. De p 't of Trans p ., 656 So. 2d 1264, 1269 n.3 (Fla.

1995)("roadway abandonment, construction, or realignment which results in inconvenience or

mere circuity of access to abutting landowners does not give rise to a compensable injury").

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(a) "Connection" means driveways, streets, turnouts, or other

means of providing 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 1 00 vehicles per day more

than the existing use.

8. Section 334.03(20), Florida Statutes, provides that the "Right of access" means

"the right of ingress to a highway from abutting land and egress from a highway to abutting land."

9. Florida Administrative Code Rule 14-96.002(7) provides as follows:

(7) "Connection Relocation, Alteration, or Closure" (pursuant to

Section 335.187, Florida Statutes) means as follows:

(a) "Alteration" of a connection means Department action to

substantially change the width of a connection or to change the

availability of right turn exits or right turn entries. For purposes of this

provision, two connections, one providing right tum entry and the other

providing right turn exit, shall be considered one connection if they are

within functional proximity of each other.

(b) "Closure" of a connection means a prohibition of the ability to

enter and exit via the connection.

(c) "Relocation" of a connection means an action to substantially

move a connection, or to move a connection to a service road connected

to the state highway.

10. Florida Administrative Code Rule 14-96.002(12) provides that the "Distance

Between Connections" means "the distance 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 . "

11. When reading Section 334.03(20), Florida Statutes in conjunction with Section

335.182(3)(a) Florida Statutes, it is clear that a "Connection" is an access point, such as a

driveway, street, turnout, or other means, which allows for ingress to a highway from abutting

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land, and egress from a highway to abutting land. Florida Administrative Code Rule 14-

96.002(12) further illuminates that a "Connection" is the point at which a non-State road links to

the outside edge of a State road.

12. In considering the many instances where "Connection" is referenced in the Florida

Transportation Code, it is noted that there is not a single instance where a median of any type is

mentioned, either expressly or by implication, as a point of connection between a non-State road

and a State road. "Connections" are the precise point where a non-State road links to the edge of

a State road, whereas a median, as it relates to the instant matter, is a traffic control feature that is

a part of a State road. Simply stated, a median, as applied to the instant claim, is not a

"Connection" as contemplated by the Florida Transportation Code.

CONCLUSIONS OF LAW

1. Chapter 120, Florida Statutes, only provides relief to persons who have been

adversely affected by final agency action. Section 120.569 (1 ), Fla. Stat.

2. The Department's construction plans for FPID' 425841-3 include the planned

widening of State Road 82 and the installation of a median that will not alter, close, or relocate the

connection point at which Sakata Road links to State Road 82, and, therefore, no notice or

opportunity for an administrative hearing is required pursuant to Florida Administrative Code Rule

14-96.015 (3).

3. The Department's planned installation of a median within the State Road 82 road

widening project and a median opening aligned with Troyer Road are traffic control features and

devices pursuant to Florida Administrative Code Rules 14-96.002 (19), (27) and (33); and are not

a "Connection" access point, such as a driveway, street, turnout, or other means, which allows for

ingress to a highway from abutting land and egress from a highway to abutting land. Sections

334.03 (20) and 335.182 (3)(a), Fla. Stat., and Fla. Admin. CodeR. 14-96.002 (12).

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4. The Department adopts the conclusions of law in the DOAH Order Closing File

and Relinquishing Jurisdiction where the ALJ determined from a review of the pleadings together

with the supporting and opposing affidavits that because a median is not a "Connection" the

provisions of Florida Administrative Code Rule 14-96 . 015(3) are not triggered, and Petitioner

otherwise has no right to a Chapter 120 hearing since Petitioner does not have a recognizable legal

interest that is impacted by the Department ' s planning-level decision to install a restrictive median

on SR 82 in front of the Sakata Property. DOT v . Konne y , 587 So. 2d 1292, 1294 (Fla. 1991),

Trianon Park Condo. Ass'n v. Cit y of Hialeah, 468 So. 2d 912 (Fla. 1985), Section 120.57(l)(i),

Fla . Stat.

5. The Department adopts conclusions of law in the DOAH Order Closing File and

Relinquishing Jurisdiction where the ALJ' s determined that if the law does not allow for legal

recourse with respect to a planning-level function, then there are no legally cognizable interests

that will be recognized under Chapter 120, Florida Statutes.

6 . The Department adopts conclusions of law in the DOAH Order Closing File and

Relinquishing Jurisdiction where the ALJ's determined that the undisputed facts demonstrate that

Sakata lacks standing to maintain the instant action, there remain no disputed issues of fact that

need to be resolved in order to dispose of this matter. Accordingly, the ALJ, pursuant to Section

120.57(1) (i) , Florida Statutes , relinquished jurisdiction to the Department for final disposition

with the recommendation that the instant action be dismissed for lack of standing.

Based on the foregoing, it is

ORDERED that the Department adopts the ALJ's Order Closing File and Relinquishing

Jurisdiction with the recommendation that Sakata Seed Corporation's Amended Petition for

Formal Administrative Hearing is dismissed for lack of standing.

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ORDERED that the Department finds that the Sakata Seed Corporation's Amended

Petition for Formal Administrative Hearing is dismissed for lack of standing .

. j;b.

DONE AND ORDERED this _iL day of July, 2019.

Secre ary .

Department of Transportation

605 Suwannee Street

Haydon Burns Building

Tallahassee, Florida 32399-0458

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NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE

APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES,

AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY

FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE

9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE

APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE

APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLE,RK OF

AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET,

M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN30 DAYS OF RENDITION OF

THIS ORDER.

Copies furnished to:

Richard E. Shine Esquire

Assistant General Counsel

Florida Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

David Smolker, Esquire

R. Clay Mathews, Esquire

Smolker, Barlett, Loeb, Hinds & Thompson P.A.

I 00 North Tampa, Suite 2050

Tampa, Florida 33602

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