19-005716 J. Glenn Wright Trust vs. Department Of Transportation Status: Closed Recommended Order on Thursday, February 13, 2020.

Summary: The Department's proposed modifications to Petitioner's driveway connections will provide the public with reasonable access to or from the State Highway System.

P RELIMINARY S TATEMENT

On May 7, 2019, the Florida Department of Transportation (Department)

issued a Notice of Intent to Modify Drivewa y Connection (Notice) to the

Glenn J. Wright Trust (Petitioner), as owner of the parcel at issue herein.

Petitioner operates a Sunoco gas station at the location in question. The

Notice advised that the Department, as part of the redesign and

reconstructio n of the interchange at State Road 60 (SR 60)/U.S. Highway 27

(US 27), proposed to remove an existing divided driveway connection between

the SR 60 exit ramp and Petitioner’s property, and to modify Petitioner’s

existing driveway access connection to US 27 South. The parties jointly

participated in a site visit, and as a result thereof, the Department modified

its original proposal.

On or about September 20, 2019, the Department issued to Petitioner an

Amended Notice of Intent to Modify Driveway Connection (Amended Notice).

On September 23, 2019, the Department supplemented its Amended Notice

to Petitioner by providing “two Proposed Modification Sheets” which were

inadvertently omitted from the Amended Notice. The Amended Notice

advised of a planned connect ion to Petitioner’s property from the newly

proposed SR 60 frontage road, a right - turn - in - o nly driveway connection to

Petitioner’s property from US 27 South, and minor improvements to the US 2 7/Oak Avenue intersection. The Amended Notice also advised that the

Department “is taking this action in order to ensure that driveway access is

maintained in the proposed roadway layout without posing a safety or

operational problem to the State Highway System, pursuant to sections

335.182 and 335.1825, Florida Statut es.”

1

1 All subsequent references to Flor ida Statutes will be to the 2019 codification, unless

otherwise indicated.

On October 1, 2019, Petitioner filed a request for administrative hearing.

On October 29, 2019, the Department referred this matter to the Division of

Administrative Hearings (DOAH) for a disputed - fact hearing. During the

disputed - fact hearing, the Department presented testimony from Kevin Ingle

and Leanna Schail. Petitioner offered testimony from J. Glenn Wright and

Thomas Harrison. Joint Exhibits 1 through 12 were admitted into evidence.

A Transcript of the disputed - fact hearing and a Joint Reque st for

Extension of Time to Submit Proposed Recommended Orders were filed with

DOAH on December 20, 2019. The request for additional time was granted,

and on January 21, 2020, each party submitted a Proposed Recommended

Order , which have been considered .

F INDINGS OF F ACT

1. The Department, pursuant to section 334.044(14), Florida Statutes, has

a duty:

[t]o establish, control, and prohibit points of ingress

to, and egress from, the State Highway System, the

turnpike, and other transportation facilities unde r

the department’s jurisdiction as necessary to

ensure the safe, efficient, and effective

maintenance and operation of such facilities.

2. By correspondence to Petitioner dated September 23, 2019, the

Department advised of its plans to modify, as part of a reconstruction and

resurfacing project, certain existing driveways that connect from Petitioner’s

property to US 27 and SR 60. According to the Department, the modification

of Petitioner’s driveway connections “will improve safety or traffic operations

o n the state roadway.” The planned US 27/SR 60 interchange reconstruction

(US 27/SR 60 interchange) seeks to change certain operational and design

features of the two roadways.

3. In the area of Petitioner’s property, SR 60 is classified as a Class 5 road

w ith a posted speed limit of 45 miles per hour. The Class 5 designation is

assigned to roads where adjacent land has been extensively develope d and

where the probability of major land use change is not high. In the area of

Petitioner’s property, US 27 is cl assified as a Class 3 road with a posted

speed limit of 50 miles per hour. The Class 3 designation is assigned to roads

where abutting land is controlled to maximize the operation of the through

traffic movement, and the land adjacent to these roadways is generally not

extensively developed.

4. Petitioner, since approximately 1968, has continuously owned and

operated a Suno co gas station on approxi mately a one - acre parcel, located at

19300 U.S. 27 South, Lake Wales, Florida. It is undisputed that the existi ng

driveway connections from Petitioner’s property to the State Highway System

have been in continuous use since 1968.

5. According to the testimony of Department witness Leanna Schail,

current Department access management standards provide that a driveway

connection on a Class 5 road must be at least 225 feet from an intersection

and at least the same distance from other connections. As for Class 3 roads, the access standards provide that a driveway connection must be at least

660 feet from an intersection and at least the same distance from other

connections. The respective distance standards are necessary in order to

facilitate the reduction of driver confusion and rear - end collisions.

6. U.S. Highway 27, at its location nearest Petitioner’s gas station, is a

north - south highway that intersects SR 60, which runs east and west.

Petitioner’s gas station is located southwest of the US 27/SR 60 interchange.

7. The parcel where Petitioner’s gas station is located appears essentially

square - shaped, with the nort hern edge of the parcel abutting the exit ramp

from SR 60. The eastern edge of Petitioner’s parcel abuts US 27. The

southern edge of Petitioner’s parcel abuts Oak Avenue. The western edge of

Petitioner’s parcel abuts private property. West of the “private property” is

Mulberry Street, which runs north and south, and connects to the south with

Oak Avenue, and to the north at the SR 60 exit ramp.

A. E XISTING A CCESS T O A ND F ROM S TATE H IGHWAY S YSTEM

8. In its current configuration, eastbound motorists on SR 60 who are west

of the SR 60/US 27 interchange must transition to the right to access the exit

ramp which has direct access connections to Mulberry Street, Petitioner’s

property (two turn - in points), and US 27 S outh. The Department’s witness

credibly testifi ed that the “two turn - in points” from the SR 60 exit ramp are

less than 225 feet from the existing and planned SR 60/US 27 interchange and do not meet current design standards.

9. Westbound motorists on SR 60 do not have direct access to Petitioner’s

gas station.

10. In its current configuration, southbound motorists on US 27 have

direct access to a driveway connection to Petitioner’s gas station. Northbound

motorists on US 27 , who are south of the SR 60/US 27 interchange, properly

access Petitioner’s gas station by turning left on Oak Avenue and then right

onto Petitioner’s driveway connection to Oak Avenue.

2 Southbound motorists

on US 27 can also indirectly access Petitioner’s gas station by turning right

onto Oak Avenue and then right on Petitioner’s dri veway connection to Oak

Avenue.

11. In its current configuration, motorists leaving Petitioner’s gas station

have right - turn - only direct access from the two driveways that connect to the

SR 60 exit ramp, right - turn - only direct access to US 27 South, and in direct

2 A reasonable inference deduced from the evidence is that motorists turning left to access

Petitioner’s gas station from US 27 North will be inclined, under certain conditions, to avoid

Oak Avenue by driving north a short distance on the US 27 South travel lanes (i.e. in the

wrong direction ) so as to access that portion of Petitioner’s driveway that connects directly to

US 27 South. The Department’s proposed design change to this dr iveway connection will

lessen the proba bility of a motorist engaging in this dangerous driving maneuver.

Additionally, the Department’s proposed redesign of this driveway connection will improve

traffic movement through the interchange by enhancing bicycle and pedestrian safety.

access to US 27 by turning left on Oak Avenue and then right on US 27

South.

B. P ROPOSED A CCESS TO AND F ROM S TATE H IGHWAY S YSTEM

12. Beginning at a point approximately 1 , 000 feet west of the SR 60/US 27

interchange, the Department proposes to cons truct near the southern edg e of

SR 60 a bi - directional frontage road which will abut and run parallel to the

SR 60 eastbound travel lanes. The eastern - most segment of the bi - directional

frontage road will terminate at Mulberry Street. Motorists travelling east on

the frontage road who desire to access Petitioner’s gas station will be able to

do so by way of a one - way extension that runs from Mulberry Street east to

the northwest portion of Petitioner’s property. The addition of the frontage

road eliminates the second eastern - most access point to Petitioner’s property

from the current SR 60 exit ramp, but still allows for direct ingress to

Petitioner’s property from the new frontage road.

13. In its proposed configuration, eastbound motorists on SR 60 who are

west of the SR 60/US 27 interchange , a nd who desire to exit to US 27 So uth,

will transition from SR 60 via a redesigned exit ramp which will bypass the

northern portion of Petitioner’s property and take motorists to US 27 South ,

where they will have one d irect and one indirect access point to Petitioner’s

gas station. The direct point of ingress to Petitioner’s gas station will be at a point nearest to the central eastern quadrant of Petitioner’s property which

abuts US 27 South. If a motorist misses this point of direct ingress, then the

motorist may proceed to the indirect point of ingress by turning right from US 27 South on Oak Avenue, and then making a second right turn to access

Petitioner’s property. These same access points are available to motorist

travelling southbound on US 27.

14. The totality of the evidence shows that egress fro m Petitioner’s

property to the S tate H ighway S ystem has dropped from three direct access

points (two onto the SR 60 exit ramp/one onto US 27 South) to only one

indirect access point (Oak Avenue). Furthermore, the evidence shows that

ingress to Petitioner’s property from the State Highway System has been

reduced from three direct access points (two from SR 60 exit ramp/one from

US 27 South) to two direct access points (fro ntage road/US 27 South), with no

material change to the indirect access point from Oak Avenue.

C ONCLUSIONS OF L AW

15. DOAH has jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569, 120.57(1), 335.182, Fla. Stat.

16. The gen eral rule is that the burden of persuasion, apart from a

statutory directive, is on the party asserting the affirmative of an issue before an administrative tribunal. Young v. Dep’t of Cmty. Aff. , 625 So. 2d 831, 833 -

834 (Fla. 1993); Dep’t of Transp. v. J. W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st

DCA 1981); Balino v. Dep’t of HRS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977).

In this case, the Department, as the party affirmatively seeking to change the status quo, bears the burden of proving by a preponderance of the evidence

that Petitioner’s driveway connections should be modified.

17. Section 335.181(2) provides that 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 acc ess 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 highwa y 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 publi c’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. 335.1 84.

Property owners are encouraged to implement the

use of joint access where legally available.

18. Florida Administrative Code Rule 14 - 96.002(25) defines “reasonable

access” as “the minimum number of connections, direct or indirect, necessary

to provide safe and efficient ingress and egress to the State Highway System

based on Section 335.18, F.S., the Access Management Classification,

projected connection and roadway traffic volumes, and the type and intensity

of the land use.”

19. Section 335.182(3)(a) provides that the term “connection,” as used in

the Florida Transportation Code and the State Highway System Access

Management Act, “means driveways, streets, turnouts, or other means of

providing for the right of reasonable access to or from the State Hi ghway

System.”

20. Rule 14 - 96.015(3) provides as follows:

Where connections are to be modified as part of a

Department contruction [sic] project, and the Department is not planning to acquire any portion of the property for the project, the Department wil l

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

construction plans for a Department project signed,

sealed, and dated by a Profe ssional 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.

21. Rule 14 - 96.011(3)(a) pr ovides that “[c]onnections permitted or in

existence prior to July 1, 1988, use of which have never been

discontinued are considered [‘]grandfathered[’] and shall not require the

issuance of a permit and may continue to provide connection to the State

Hi ghway System except as provided in subsection (4).” Petitioner’s

connections are “grandf athered” within the meaning of r ule 14 - 96.011.

22. Rule 14 - 96.011(4)(b) provides, in part, that the “Department will

modify a connection if such modification is deter mined 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.”

23. Florida Administrative Code Rule 14 - 97.003(3)(b) provides that

existing lawful co nnections, such as Petitioner’s grandfathered connections,

“are not required to meet the access management standards[,] [and e]xisting

access management features will generally be allowed to remain in place, but

shall be brought into conformance with acces s management standards when

significant change occurs or as changes to the roadway design allow.”

24. The overall statutory framework and related rules require the

Department to bring non - conforming lawful driveway connections into

compliance with current access management standards , where feasible, by

utilizing the fewest number of direct or indirect connections required to provide for safe and efficient ingress and egress to the State Highway

System.

25. It is undisputed that the current eastbound SR 60 exit ramp provides

two points where drivers on the ramp could come into conflict with drivers

turning from Petitioner’s property onto the ramp. This is without question a

safety concern. The redesigned eastbound SR 60 exit ramp and the unidirectional fron tage road extension to Petitioner’s property eliminate the

opportunity for traffic conflict because motorists will no long have direct

egress from Petitioner’s property to the SR 6 0 exit ramp. The elimination of

this opportunity for traffic conflict has th e positive effect s of improving

vehicular circulation and enhancing safety on the public road system.

26. With respect to the driveway connection from US 27 South to

Petitioner’s property, the Department’s decision to make this a right - turn - in ,

ingress - o nly connection from US 27 South enhances safety by eliminating the

opportunity for traffic conflict between motorists exiting Petitioner’s property

and motorists attempting to access Petitioner’s property from US 27 South or

US 27 North. 3

27. Petitioner do es not challenge the Department’s proposed changes on

the grounds that the changes fail to comply with Access Management

standards, but instead, challenge s the Department’s intended action on

grounds that the changes will create traffic circulation problem s on

Petitioner’s property. While it is possible that the reduction in egress

connections from Petitioner’s property could result in an increase in

opportunities for vehicular conflict as motorists navigate about Petitioner’s

property, the evidence does no t establish that the resulting loss of egress

connections will deprive motorists of reasonable direct or indirect access to or

from the State Highway System.

28. The Department has met its burden, and proved that the modification

of Petitioner’s existing d riveway connections will improve safety or traffic

operations on the State Highway System.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Transportation enter a final order

finding t hat the proposed modifications to the driveway connections of the

J. Glenn Wright Trust property provide the public with reasonable access to

or from the State Highway System, and denying the challenge of the J. Glenn

Wright Trust to the Amended Notice of Intent to Modify Driveway

Connection issued on September 23, 2019.

3 See Footnote two regarding concerns associated with motorists traveling northbound on

US 27.

D ONE A ND E NTERED this 13th day of February , 2020 , in Tallahassee, Leon

County, Florida.

L INZIE F. B OGAN

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

this 13th day of February , 2020 .

C OPIES F URNISHED :

David W. Holloway , Esquire

David W. Holloway, P. A.

10764 70th Avenue , Suite 6206

Seminole, Florida 33772

(eServed)

Richard E. Shine, Assistant General Counsel

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Andrea Shulthiess, Clerk of

Agency Proceedings

D epartment of T ransportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

D epartment of T ransportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

(eServed)

Kevin J. Thibault, P.E., Secretary

D epartment of T ransportation

Haydon Burns Building

605 Suwannee Street, MS 57

Tallahassee, Florida 32399 - 0450

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All partie s 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.