20-004115 The Barkmore Resort vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 29, 2021.

Summary: DOT proved closing 1 of 2 driveways as part of a significant highway reconstruction project was necessary and that the remaining driveway provided reasonable access to the state highway system.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HE B ARKMORE R ESORT ,

Petitioner ,

vs. Case No. 20 - 4115

D EPARTMENT OF T RANSPORTATION ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge John D. C. Newton, II, of the Division of

Administrative Hearings (Division) heard this case by Zoom conference on

December 8, 2020, with locations in Tallahassee, Bartow, and Land O ' Lakes,

Florida.

A PPEARANCES

For Petitioner: Stephanie N. Carver , pro se

The Barkmore Resort

10125 Land O ' Lakes Boulevard

Land O ' Lakes, Florida 34638

For Respondent: Richard E. Shine, Esquire

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE S

A. Is it necessary for Respondent, the Department of Transportation

(DOT), to close the southern driveway of the property of Petitioner, Barkmore

Resort, Inc. (Barkmore)?

B. If the driveway is closed, will the Barkmore property have reasonable

access to the State Highway System?

P RELIMINARY S TATEMENT

DOT sent Barkmore a Notice of Intended Department Action advising

that , as part of a project converting a part of State Road 45 (SR 45) (also

known as Land O ' Lakes Blvd. or US 41) to a four - lane divided roadway , DOT

intended to close Barkmore ' s southern driveway entering SR 45 and widen

the northern one. Barkmore requested a formal administrative hearing to

dispute DOT ' s decisi on. The only grounds for rejecting DOT ' s proposed action

stated in the request for hearing were that if the driveway were closed,

" [t]here will be no way to access the electric poles, multiple septic tanks, and

propane tank if the South driveway is closed " and the business would become

" inoperable. "

DOT referred the dispute to the Division on September 16, 2020, for

conduct of the requested hearing. The undersigned conducted the hearing

December 8, 2020. DOT presented testimony from Tammy Kreisle, P.E.,

Co nstruction Engineer, and Ken Muzyk, P.E. E xhibits 1 (limited purpose)

through 11 were admitted into evidence on behalf of DOT . Stephanie N.

Carver, owner and president of Barkmore , testified for Barkmore, presenting

eight lines of testimony. Barkmore did not offer exhibits. Both parties were

advised of their right to submit proposed recommended orders. The Hearing

Transcript was filed January 4, 2021. DOT timely filed a proposed

rec ommended order, which has been considered in preparation of this

Recommended Order. Barkmore did not file a proposed recommended order.

F INDINGS OF F ACT

1. Barkmore is located at 10125 Land O ' Lakes Boulevard (SR 45), Land

O ' Lakes, Florida. The Barkmore property is a single parcel consisting of

three lots with commercial operations for Barkmore Resort Kennel and a

recreational vehicle and boat storage facility.

2. The property ' s two driveways connect to SR 45. The northern driveway

connects to the Barkm ore parking lot and is aligned with the fence gate for

the storage area. At some point in the past, the southern driveway had a

cross - connection to the parking lot. It does not now. It currently consists of

dirt and grass and terminates at a locked gate on the southern run of

BarkmoreÔs fence. Images of the southern driveway do not show signs of

recent use. Currently the driveways are " grandfathered " in and not subject to

existing driveway requirements.

3. SR 45 is part of FloridaÔs highway system. DOT re gulates access to the

state highway system to ensure safe, efficient, and effective maintenance and

operation of the roads. Several statutes and rules govern DOT ' s activities,

including when and how it can change a property ' s access to the system.

4. DOT is planning a roadway widening project that will include

reconstructing SR 45 into a four - lane roadway. This will permit a 55 mile an

hour speed limit. The SR 45 project ' s approximate length is 2.7 miles

reaching from north of Connerton Boulevard to south of State Road 52.

BarkmoreÔs property abuts that stretch of road. DOT intends for the project

to improve road capacity , traffic flow , and safety. The project is a significant

change to the roadway and roadway design.

5. The project includes modifications a nd improvements to driveway

connections along SR 45. It also provides for a shared - use path for vulnerable

users, including bicyclists and pedestrians, along the east side of the project.

The path, however, is on the opposite side of SR 45 from Barkmore.

B arkmore ' s driveway is one of approximately 19 driveway modifications DOT

proposes as part of the project.

6. Barkmore ' s southern and northern driveways are 155 feet apart.

Florida Administrative Code Rule 14 - 97.003 requires 6 6 0 feet between

driveway connections. This requirement alleviates " driveway confusion " for

drivers caused by driveways in close proximity to each other, like those of

Barkmore. The fact that Barkmore ' s southern driveway terminates in a

locked gate adds t o the confusion for drivers.

7. Every driveway creates a conflict point with vehicles and pedestrians

traveling on the road to which the driveway connects. Limiting conflict points

promotes better traffic movement and an increased level of safety and

mobi lity for the highway system .

8. Because of these safety and traffic flow considerations , DOT proposed

modifying the Barkmore driveways to bring them into compliance with

current requirements. DOT proposed elimination of the southern driveway

and significa nt improvement of the northern one. The project will replace the

northern driveway ' s dirt and gravel with asphalt. The project will increase

the width of the northern driveway from 12 feet to 24 feet at the right - of - way

line. The project also increases the opening, or throat, where the northern

driveway connects to SR 45 , to 70 feet. After the proposed changes, the

northern driveway will provide reasonable and improved access to

BarkmoreÔs property, including to the southern gate. After modification , the

no rthern driveway will provide for adequate vehicle circulation into and out

of the Barkmore property.

9. There is no evidence to support the claim of the hearing request that,

" [t]here will be no way to access the electric poles, multiple septic tanks, and

propane tank if the South driveway is closed " and the business would become

" inoperable. "

10. On August 2, 2019, DOT sent Barkmore a notice advising of DOT ' s

intent to close BarkmoreÔs southern driveway and widen its northern

driveway connecting Barkmore ' s property to the DOT right - of - way for State

Road 45. The notice also advised Barkmore of its right to request an

administrative hearing.

11. DOT conducted a hearing on October 15, 2019, to receive public input,

to learn how the project will affect access t o businesses, and to hear public

input about the projectÔs potential economic impact on the business

community.

C ONCLUSIONS OF L AW

12. Sections 120.569 and 120.57(1) , Florida Statutes (2020) 1 , grant the

Division jurisdiction over the parties and the subject matter of this case.

13. DOT is the state agency responsible for regulating access to the state

highway system pursuant to sections 335.18 through 335.188, Florida

Statutes.

14. DOT initiate d this action. Consequently, DOT bears the burden of

proving the allegations of the Notice by a preponderance of the evidence. See

Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

15. Owners of property abutting a state highway have a ri ght to

reasonable access to the highway. But they do not have a right to

unregulated access. DOT may restrict access connections so long as it permits

reasonable access to an abutting state highway. § 335.181(2), Fla. Stat. DOT

has broad discretionary auth ority to plan and construct roads. Dep't of

Transp. v. Lopez - Torres , 526 So. 2d 674, 675 (Fla. 1988); § 334.044, Fla. Stat.

16. Driveway connections on state roads must be permitted or

" grandfathered. " See § 335.1825, Fla. Stat.; Fla Admin. Code R. 14 -

96. 011(3)(a). DOT may modify a " grandfathered " connection, like Barkmore ' s,

in conjunction with a DOT project like the improvements to SR 45.

Modification is necessary if the unmodified connection would jeopardize

public safety or negatively affect the operat ional characteristics of the state

highway. Fla. Admin. Code R. 14 - 96.011(4)(b).

17. Barkmore ' s two driveway connections would jeopardize public safety

and negatively affect the operational characteristics of SR 45 if unchanged.

DOT ' s proposal to close th e southern driveway and significantly upgrade the

1 All citations are to the 2020 compilation of the Florida Statutes unless noted otherwise.

northern driveway preserve s reasonable access to SR 45. The proposed

modification is necessary and preserves Barkmore ' s access to SR 45 .

18. Section 335.199(3) requires DOT to hold at least one public heari ng to

receive input about a proposed project. DOT fulfilled this requirement.

19. Florida Administrative Code Rule 14 - 96.011(3)(c) requires DOT to

offer the property owner an opportunity to meet on site and consider

documents and alternatives offered by the property owner. DOT complied

with this requirement.

R ECOMMENDATION

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

recommended that Respondent, Department of Transportation, enter a final

order approving the closure of the southern driveway of Petitioner, Barkmore

Resort , Inc., and improvement of the northern driveway as part of the State

Road 45 project.

D ONE A ND E NTERED this 29th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

J OHN D. C. N EWTON , II

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of January, 2021 .

C OPIES F URNISHED :

Stephanie N. Carver Richard E. Shine, Esquire

The Barkmore Resort Department of Transportation

10125 Land O ' Lakes Boulevard 605 Suwannee Street

Land O Lakes, Florida 34638 Tallahassee, Florida 32399

Amber Greene, Clerk of Kevin J. Thibault, P.E., Secretary

Agency Proceedings Department of Trans portation

Department of Transportation Haydon Burns Building

Haydon Burns Building 605 Suwannee Street, MS 57

605 Suwannee Street, MS 58 Tallahassee, Florida 32399 - 0450

Tallahassee, Florida 32399 - 0450

Sean Gellis, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.