21-001546 David L. Maassen vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, September 28, 2021.

Summary: Department of Transportation established that the existing driveway on Petitioner's property should be closed pursuant to statute and rule.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D AVID L. M AASSEN ,

Petitioner ,

vs. Case No. 21 - 1546

D EPARTMENT OF T RANSPORTATION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, the final hearing in this cause was conducted before

Administrative Law Judge Lynne A. Quimby - Pennock, of the Division of

Administrative Hearings (ÑDOAHÒ), on July 16, 2021, by Zoom conference

from Tallahassee, Florida.

A PPEARANCES

For Petitioner: David Lambert Maassen, pro se

140 South Osceola Avenue

Arcadia, Florida 34266

For Respondent: Richard E. Shine, Esquire

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399

S TATEMENT OF T HE I SSUE

Whether the Notice of Intent to Modify Driveway Connection, in which

Respondent, Florida Department of Transportation (ÑFDOTÒ) seeks to close a

driveway on PetitionerÔs property to eliminate potential traffic issues and

reduce the number of acces s points to the roadway, is consistent with sections

334.044(14), 335.181, and 335.182, Florida Statutes, and Florida

Administrative Code Rules 14 - 96.011 and 14 - 96.015.

P RELIMINARY S TATEMENT

On March 1, 2021, FDOT sent a Notice of Intent to Modify Drivewa y

Connection (ÑNoticeÒ) to John and Kathryn Maassen, the listed property

owners. The Notice announced that the Ñexisting driveway,Ò an

approximately 100 - foot driveway connection directly on State Road 70

(ÑSR 70Ò or ÑOak StreetÒ) , would be closed to improv e safety or traffic

operations. Multiple ÑDriveway drawings [ 1 ] Ò [sic] were allegedly attached to

the Notice, as was a Notice of Administrative Hearing Rights.

Petitioner David Maassen (ÑMr. MaassenÒ), timely requested a hearing.

FDOT referred the matter to DOAH for a Ñformal administrative hearing

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.Ò

The Notice provided:

Re: (04040000) FDOT Financial Project ID 441562 -

1 - 52 - 0l

Property Tax ID 25 - 37 - 24 - 0128 - 00B0 - 0120

Notice of Intent to Modify Dr iveway Connection

The Florida Department of Transportation (FD O T)

is currently designing a roadway improvement

project reconstruction on SR. 70 in DeSoto County.

Part of the design effort includes an evaluation of

existing driveway connections for potentia l

modifications that will improve safety or traffic

operations on the state roadway.

Pursuant to sections 334.044(14) and 335.182

Florida Statutes, as well as Rule 14 - 96.015 Florida

Administrative Code and Rule 14 - 96.011(3)(b),

(5)(b), FDOT is proposing t o alter the exis ting

1 The Notice included a one - page ÑROADWAY PLAN (2).Ò

driveway access connection to Property Tax ID: 25 -

37 - 24 - 0018 - 00D0 - 0000 [ 2 ] and SR 70.

FDOT is taking this action pursuant to sections

335.182 and 335.1825 Florida Statues and

Rules 14 - 96.011 and 14 - 96.15, [ 3 ] Florida

Administrative Code.

The existing driveway will be closed, as per the

attached plans [sic]. This proposed action will

reduce the number of access points to the roadway

and eliminate potential traffic issues.

A copy of a Notice of Administrative Hearing

Rights is also attached if you should disagree with

the proposed plan.

Sincerely,

Kara Davis

Florida Department of Transportation

District One [ 4 ]

On May 19, 2021, the Notice of Hearing by Zoom Conference was issued,

scheduling the hearing for July 16, 2021. The hearing was completed as

scheduled.

On July 9, 2021, Petitioner and Respondent each filed their proposed

exhibits. Respondent also filed its witness list. On July 14, 2021, FDOT filed

a ÑNotice of Filing Amended Exhibit for Final Hearing,Ò specifically

Exhibit 1 1.

2 The two property tax IDs listed in the ÑRe:Ò section and paragraph two are not the same. No

objection was raised to the two inconsistent property tax IDs. Throughout the hearing the

property location was presented as the northeast corner of SR 70 and Baldwin Avenue in

Arcadia, Florida.

3 The reference to rule Ñ14 - 96.15 Florida Administrative CodeÒ is incorrect, there is no such

rule. No objection was raised to the incorrect cit ation, and the parties easily discussed the

relevant rule, rule 14 - 96.015, which was listed in paragraph two of the Notice.

4 At no time was District OneÔs territory provided.

During the hearing, Mr. Maassen testified on his own behalf, and his

Exhibits A through Q were accepted in evidence. 5 FDOT presented the

testimony of three witnesses. RespondentÔs Exhibits 1 through 11 were

accepted in evidence.

At the end of the hear ing, the parties were advised of the ten - day

timeframe provided by rule for filing proposed recommended orders (ÑPROsÒ),

running from the later of the filing of the transcript at DOAH or the close of

the hearing. At that time, the undersigned was advised t hat a transcript

would be ordered. Mr. Maassen unilaterally requested an extended deadline

of 20 days from the filing day of the transcript. RespondentÔs counsel did not

object, and the request was granted.

The one - volume Transcript was filed on August 20 , 2021. On August 20,

2021, FDOT filed a Motion to Extend the Date to Submit Proposed

Recommended Orders (ÑMotionÒ). The Motion provided that FDOT had

received the Transcript and requested the court reporter to file it at DOAH.

Further, the Motion provided the parties had conferred after the conclusion of

the hearing, and were jointly requesting 21 days to file the PROs. The Motion

was granted and the parties were notified that their PROs were due on

Friday, September 10, 2021.

Both parties timely filed t heir PROs on September 10, 2021. To the extent

that either PRO contained new facts or information that was not subject to

cross - examination during the hearing, those matters have been excluded

from consideration. Otherwise, both PROs have been carefully co nsidered in

the preparation of this Recommended Order.

5 Exhibits A through H, and J were admitted over objection.

F INDINGS OF F ACT

The Witnesses

1. Mr. Maassen testified that John and Kathryn Maassen were his

parents and are deceased. 6 Although an argument could be made that

Mr. Maassen was not the proper party t o this case, no one raised this as an

objection, and both parties actively participated in the hearing.

2. Nicolas Leon is employed by FDOT as a roadway engineer supervisor

III. He holds a bachelorÔs and masterÔs degree in civil engineering, and is a

licen sed professional engineer. Mr. LeonÔs duties and responsibilities include

being the engineer of record and/or project manager on multiple

transportation projects. He oversees a team of roadway and traffic designers ,

project managers, and engineers.

3. Lea nna Schaill is employed by FDOT as a traffic services access

management manager for District One. She has a degree in mechanical

engineering, and manages a team of four FDOT employees who review all the

access management applications for driveway connectio n permits throughout

District One.

4. Joel B. Hobbs is employed by FDOT as an operation program engineer.

He works at the FDOT maintenance office which is west of the property at

issue.

FDOTÔs Process

5. FDOT conducted an analysis of SR 70 in DeSoto Count y, Florida by

evaluating the roadway, side streets, median openings, access connections,

intersections, and intersections signalizations. A roadway project was

formulated to bring the facility into compliance with state statutes and rules.

6 Mr. MaassenÔs E xhibit N was a copy of Warranty Deed regarding ÑLots 12, 13, and 14 of

Block B, Fountain Park Subdivision, Arcadia Florida,Ò executed between Elon N. and

Alesia J. Duncan to John S. and Kathryn Maassen dated April 21, 1961.

6. FDOT is char ged to use a forward - looking process to bring all state

roadways into compliance with FDOTÔs design standards. These design

standards, set forth in FDOTÔs statutes and rules , are to protect and ensure

the public health, safety, and welfare for all users of the state roadway,

including vehicles, pedestrians, and bicycles.

7. FDOT is required to follow the Access Management Act found in

chapter 335.18, and 14 - 96 and 14 - 97 to evaluate the roadway.

8. Property owners who have property directly adjacent to a st ate roadway

share a property boundary with the state roadway. Those property owners

are entitled to reasonable and adequate access to their property. However,

the property owner is not entitled to unregulated access to that property.

See § 335.181(2) , Fla. Stat.

9. FDOT was statutorily directed to adopt rules that provide an

administrative procedure for closing unpermitted connections.

See § 335.182(2) , Fla. Stat. As found in rules 14 - 96 and 14 - 97, an unregulated

access, such as a driveway, is one that has not been permitted by FDOT, and

may create safety and operational concerns because it may not be constructed

or designed in compliance with FDOTÔs standards.

10. Driveway connections on state roads must be permitted or

grandfathered. See § 335.1825, Fla. S tat.; Fla. Admin. Code R. 14 -

96.011(3)(a). A driveway is grandfathered if it was in existence prior to

July 1, 1988, when access permits were first required. See Fla. Admin. Code

R. 14 - 96.011(3)(a). To retain the grandfather status, a driveway must be

cons istently used by the owner or business proprietor. If the property use is

changed, that property loses the grandfathered status.

11. When a property use changes, the owner has the ability to apply to

FDOT for an access permit for the access connection. FD OT reviews those

applications and may grant or deny the application.

12. Driveway confusion and driver confusion occur when a driver Ñis

presented with too many choices to make in a short period of time due to the

inefficiency or difficult driveway locatio n.Ò Such driveway confusion could

cause a driver to make a wrong choice as to when, where, and how to move

their vehicle within a driveway area, attempt to enter a driveway, or exit the

driveway into the flow of traffic.

FDOTÔs Proposed Project and Propert y

13. FDOT proposed a Ñroadway improvement project reconstruction on

SR 70 in DeSoto County,Ò Florida.

14. The project is approximately 1.8 miles in length beginning just east of

Peace River, and heading east into Arcadia, Florida. The project includes

bo th the eastbound and westbound lanes of SR 70, a divided roadway,

sometimes called Ñone - way pairs.Ò

15. FDOT proposed to: reconstruct the pavement through repaving the

roadway; install a new closed - drainage system for storm water; install a new

sanitary s ewer line; create new signage; improve pavement markings; install

signalization; and provide lighting improvements.

16. Additionally, at the intersection of SR 70 and Baldwin Avenue

(ÑBaldwinÒ), FDOT proposed to install a west - bound right turn lane onto

N orth Baldwin.

17. For the majority of the project, FDOT proposed to install eight - foot -

wide ADA 7 compliant sidewalks with ramps at the intersections. However, in

the area where the 100 - foot driveway would be closed, a six - foot - wide

sidewalk with intersect ion ramps would be created along the curve in SR 70,

based on the limited right - of - way.

18. Ms. Schaill testified that using the Ñsame criteria and regulation,

statutes, and Administrative Code,Ò her team analyzed 120 driveway access

connections along the proposed project corridor. Of those 120 driveway access

connections, 14 were identified for modification due to safety and operational

concerns.

7 The term ÑADAÒ was understood to refer to the Americans with Disabilit ies Act of 1990, a

civil rights law that prohibits discrimination based on disability .

Five of the 14 driveway access connections were identified for closure due to

safety and operational concerns .

19. The property containing the approximate 100 - foot driveway with

direct access to SR 70 at issue here is a 0.43 - acre parcel located at the

northeast corner of Baldwin and SR 70, Arcadia , Florida .

20. The 100 - foot driveway has been in use since the 19 60s. The property

was a gasoline station for many years. However, in the 1990s , the property

use changed from a gasoline station to a sign shop, known as De S oto Sign

(ÑShopÒ) .

PetitionerÔs Objection and Position

21. Mr. Maassen objected to FDOTÔs proposed closure of the ShopÔs

10 0 - f oot driveway with direct access to SR 70. The Notice used the term

Ñmodification,Ò yet it also contained the sentence: Ñ[T]he existing driveway

will be closed, as per the attached plans. Ò 8 Mr. MaassenÔs position was that

the ter ms: ÑmodificationÒ and ÑclosureÒ are not the same. The Notice provided

that the closure would Ñreduce the number of access points to the roadway

and eliminate potential traffic issues.Ò The Notice also provided that the

potential modifications would Ñimpro ve safety or traffic operations onÒ SR 70.

22. Mr. Maassen offered 10 ÑFLORIDA TRAFFIC CRASH REPORT[s]Ò

dated May 2016 to December 2020 to support his contention that automobile

crashes at or near the Shop were not the issue. He alluded that Exhibit ÑI , Ò a

crash report from May 2017, provided the only instance where a bus was

parked parallel to SR 70 on the 100 - foot driveway. The report mentioned the

parked bus as a contributing factor to a two - car accident. However, it is noted

that the crash report is ove r four years old.

8 As indicated above, only one drawing or plan was attached to the Notice.

23. Mr. Maassen acknowledged that a long - bed blue tractor - trailer has

parked (and still parks) parallel and next to the S hop , along Baldwin . He also

acknowledged at times the tractor - trailer traveling westbound on SR 70 may

have maneuver ed into that parking location by blocking traffic on SR 70. It is

Mr. Maassen Ôs belie f that FDOT is using that tractor - trailer as its basis for

the proposed closure of the 100 - foot driveway.

24. Mr. Maassen testified that the tractor - trailer driver should be

educated and/or ticketed by law enforcement to stop the parking maneuver.

Mr. Maassen further testified that if the driver could not be educated as to

how to drive or park appropriately, his license should be revoked.

25. Mr. Hobbs, the only witness to actually see the tractor - trailer parking

maneuver, conceded that Ñwithin the last year,Ò the tractor - trailer is Ñno

longer pulling out directly onto 70 . He is pulling up adjacent to the through

lane and starting his maneuvers to back up into the parking position. Ò The

tractor - trailer is now traveling south on Baldwin, pulling onto the Shop

property via the Baldwin connection, and maneuvering into the parallel

parking position next to the Shop.

26. Mr. Maassen had no idea whether the 100 - foot driveway, w ith the

direct access to SR 70, was permitted at the time it was constructed or since

that time. He made the point that someone would not Ñgo out and cut a hole

in a driveway for a roadway without somebody knowing about it.Ò

27. Mr. Maassen acknowledged t he speed limit on SR 70 in front of the

Shop was 45 miles per hour.

28. Further, Mr. Maassen pointed to section 335.184(3), and argued that

when the roadway was repaved, or work done on the Shop property,

Ñ[T]hereÔs been no reason to make a change.Ò Howeve r, he did not provide any

testimony as to when any re - pavement or work was done on SR 70 or on the

Shop property. His position is the 100 - foot driveway gives the property

reasonable access for Shop customers.

29. Mr. Maassen asserted F D OT 's proposed acti on leaves h im without

"reasonable access" to the Shop property. He testified:

I cannot take a delivery vehicle off a side street,

make a U - turn, turn it around on that driveway

and bring it back out on the side street. A vehicle of

any size or nature, any of the businesses that the

sign shop actually works with that has a vehicle

with a trailer will be limited.

ThereÔs a canopy in the middle of that driveway

which prevents you from making any type of a U -

turn out there with any type of a dual vehicle. We

need to have a complete access through the

property from one side to the other, not just being

able to pull onto one side.

This is not a retail outlet. This is an operational

facility where theyÔre doing work on vehicles out

front that must be able to b e brought across the

driveway, not just pull on it and back out.

His contention is that this action (maneuvering around the Shop property) Ñis

reasonable access for customers.Ò However, maneuvering on the Shop

property is considered internal circulation, and not what FDOT is charged

with regulating.

FDOTÔs Position

30. FDOT is the state agency responsible for regulating access between

state roads and private property abutting those roads. See §§ 335.18 through

335.188, Fla Stat. SR 70 is a part of the Flo rida state highway system.

31. The ShopÔs direct connection, meaning the access , or driveway,

connecting the parcel onto SR 70, runs parallel to SR 70 and is approximately

100 feet long, with a curb somewhere in the middle. The approximate length

of the cu rb was not provided, nor was its existence challenged. This direct

connection begins approximately 10 feet from the intersection of SR 70 and

Baldwin.

32. The ShopÔs second connection (Ñsecond drivewayÒ) lies on Baldwin and

is approximately 75 feet long. This is an indirect connection as it connects the

Shop property to Baldwin, the side street which directly connects to SR 70.

The second driveway is not subject to any changes in the Notice.

33. SR 70 is classified as a class 5 road. See Fla. Admin. Code R . 14 -

97.003(1), Table 2. The class 5 designation is assigned to roadways that Ñare

controlled access facilities where adjacent land has been extensively

developed and where the probability of major land use change is not high.Ò

See Fla. Admin. Code R . 14 - 9 7.003( 2 ) (b)4. The rul e provides that for a

driveway connection on a class 5 road, which has a posted speed limit of

45 miles per hour, there must be at least 245 feet between the access

connections on driveways, side streets, or adjacent properties.

34. M s. Schaill confirmed that at the intersection of SR 70 and Baldwin,

the speed limit is 45 miles per hour. Further, she testified that the distance

between the ShopÔs 100 - foot driveway abutting SR 70 and the Baldwin

intersection is approximately 10 feet. Th us, the ShopÔs 100 - foot driveway is

an unregulated access, in that it does not meet the spacing requirement

identified in rule 14 - 97.003(2)(b)4. Ms. Schaill testified that this unregulated

access is FDOTÔs reason for closing the driveway.

35. As provided in paragraph 9 above, Ñd riveway connections on state

roads must be permitted or grandfathered . Ò See § 335.1825, Fla. Stat.;

Fla. Admin. Code R . 14 - 96.011(3)(a). The re is no question that the gasoline

stationÔs direct connection was in place prior to 1988 . H owever , the use of the

property changed to the Shop in the mid - 1990s without a n access permit

application being submitted to or granted by FDOT .

36. Ms. Schaill testified the Notice was FDOTÔs second letter

communicating the intent to modify the ShopÔs pr operty access. Further,

FDOT staff met with Mr. Maassen or his brother at the Shop property to

discuss the proposed project. N umerous telephone conversations occurred

between Mr. Maassen and FDOT staff regarding the proposed project .

37. Ms. Schaill credib ly testified to the statutes and rules that FDOT must

follow when projects are proposed. To paraphrase the language of section

335.181(1), she provided that the:

Access Management Act is to protect all users of

the state highway system, insofar as to ensu re that

public health, safety, and welfare of all users,

which includes vehicular traffic, pedestrian traffic,

and bicycle traffic on a state roadway, while also

allowing for the safe and efficient mobility of people

on a state roadway.

38. Further, Ms. S chaill specified section 335.181(2) provided that Ñevery

property owner adjacent to the state roadway, shares a property boundary

with the state roadway [and] is entitled to reasonable and adequate access to

their parcel.Ò However, the property owner is no t Ñentitled to unregulated

access to that parcel.Ò

39. An unregulated access to a property is one that has not been permitted

by FDOT. Ms. Schaill testified that such unregulated access to a property

Ñmay create safety and operational concerns or is not co nstructed or designed

in accordance with the DepartmentÔs standards for driveway connections.Ò

40. According to Ms. Schaill, a Ñproperty owner is entitled to and has a

right to the minimum number of connections required to provide safe and

efficient ingres s and egress to their parcel, which can be satisfied by either

direct or indirect driveway connections.Ò In this instance, the indirect

connection could be made for ingress to the Shop from Baldwin by either

turning left or right onto the Shop property, an d for egress by turning left out

of the Shop property onto Baldwin, which connects directly to SR 70.

41. Ms. Schaill confirmed that section 335.181(2)(a) requires FDOT to

provide a property owner Ñadjacent to the state roadway reasonable and

adequate acce ss to the state roadway either by indirect or direct means. The

access is - - - permissible access would have to be regulated by the

Department, and we could not approve an unregulated access.Ò

42 . Ms. Schaill 's testimony was clear, concise, and credible a s to the

statutes and rules employed by FDOT in making the determination

regarding the closure of the 100 - foot driveway.

C ONCLUSIONS OF L AW

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

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

44. FDOT, as the party asserting the affirmative of the issue, has the

burden to prove by a preponderance of the evidence that the driveway may be

modified as proposed in the Notice. Young v. DepÔt of Cmty. Aff. , 625 So. 2d

831, 833 - 34 (Fla. 1993); DepÔt of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981).

45. FDOT is the state agency responsible for regulating access to the state

highway system pursuant to sections 335.18 through 335.188. Specifically,

FDOT is the stat e agency with the power Ñ[t]o establish, control, and prohibit

points of ingress to, and egress from, the State Highway System È as

necessary to ensure the safe, efficient, and effective maintenance and

operation of such facilities.Ò £ 334.044(14), Fla. St at.

46. FDOT initiated this action by issuance of a Notice, with an attached

driveway drawing and notice of administrative hearing rights.

47. Section 335.181 provides in pertinent part:

(1) It is the finding of the Legislature that:

(a) Regulation of a ccess to the State Highway

System is necessary in order to protect the public

health, safety, and welfare, to preserve the

functional integrity of the State Highway System,

and to promote the safe and efficient movement of

people and goods within the state .

* * *

( 2)(a) Every owner of property which abuts a road

on the State Highway System has a right to

reasonable access to the abutting state highway

but does not have the right of unregulated access

to such highway. The operational capabilities o f an

access connection may be restricted by the

department. However, a means of reasonable

access to an abutting state highway may not be

denied by the department, except on the basis of

safety or operational concerns as provided in s.

335.184.

(b) The a ccess rights of an owner of property

abutting the State Highway System are subject to

reasonable regulation to ensure the publicÔs right

and interest in a safe and efficient highway

system. This paragraph does not authorize the

department to deny a means o f reasonable access

to an abutting state highway, except on the basis

of safety or operational concerns as provided in s.

335.184. Property owners are encouraged to

implement the use of joint access where legally

available.

48. ÑÓReasonable AccessÔ means 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

volu mes, and the type and intensity of the land use.Ò See Fla. Admin. Code

R. 14 - 96.002(25). ÑÓConnectionÔ means driveways, streets, turnouts, or other

means of providing for the right of reasonable access to or from the State

Highway System.Ò £ 335.182(3)(a), Fla. Stat.

49. Driveways on state roads must be permitted or grandfathered, or they

are subject to closure. See § 335.1825 , Fla. Stat., and Fla. Admin. Code R. 14 -

96.011(3). An unpermitted driveway is grandfathered if it was in existence

prior to July 1, 1988, and has not been discontinued for a period of one year

or more. Id . at 14 - 96.011(3)(a). A change in property use occurs when the

business located on the property has been out of service for a period of one

year or more. See Fla. Admin. Code R. 14 - 96. 005(2)(c)3.

50. The ShopÔs 100 - foot driveway directly on SR 70 is currently an

unpermitted driveway. W hen the gasoline station started operation in the

1960s, a permit may not have been required. However, when the gasoline

station ceased operation and the Shop engaged in business, the property use

changed, and a permit was required.

51. FDOT , at the direction of the State legislature, has adopted rules

governing the modification of unpermitted driveways. Rule 14 - 96.015

provides, in relevant part, as follo ws:

When existing connections are modified by a

Department 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 consi stent 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 Department standards.

(2) When a permitted 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 contruction [sic] 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 pr oceeding 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 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.

52. Pursuant to rule 14 - 96.011(4)(c), if FDOT acts to modify a driveway, it

Ñshall o ffer an opportunity to meet on site with the property owner or

designated representative È [and] take into consideration the following:

1. Documents, reports, or studies obtained by

the property owner or lessee and provided to the

Department.

2. Alternati ve solutions proposed by the

property owner.

53. FDOT may modify grandfathered driveways pursuant to the following

standards set forth in rule 14 - 96.011(4)(b):

The Department will modify a connection if such

modification is determined to be necessary beca use

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

re gistered in the State of Florida. Such engineering

study shall consider the following:

1. Analysis of accidents or operational 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 of 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.

54. Rule 14 - 96.011(5) provides the following notification process for

modifying a grandfathered connection:

(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 operational problem (as specified in this

rule chapter). The notice will identify the specific

inform ation 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.

1. If the reason for the modifi cation is due to

significant change the notice will state the basis of

the DepartmentÔs determination and require the

filing of a permit application by a specified date.

Where the DepartmentÔs requirement to file an

application has become final and no time ly

application has been filed, the Department will

take immediate action to modify the connection in

accordance with the notice at the ownerÔs expense.

2. If the reason for the modification is a safety or

operational problem, the notice will state the bas is

of the DepartmentÔs determination and describe the

changes necessary to reduce the hazard or correct

the situation.

55. Here, FDOT seeks to modify PetitionerÔs unpermitted, 100 - foot - wide

driveway for safety and operational reasons due to the Project al ong SR 70.

56. Based on the Findings of Fact, PetitionerÔs driveway was at one point

grandfathered. Although there is no dispute that the driveway existed on or

befor e July 1, 1988, the weight of the credible evidence confirmed that the

use of the property changed in the 1990s from a gas station to a sign shop, a

significant change in use. Testimony established that no permit was

requested or obtained when this change in use occurred.

57. Based on the Findings of Fact, FDOT complied with the requirement

in rule 14 - 96.011(4)(c) to meet on site with Mr. Maassen or his brother, plus

additional telephone conversations between the two parties occurred. Though

the efforts to reach an agreed resolution were unsuccessful, FDOT complied

with the requirement to meet o n site and consider PetitionerÔs circumstance.

Further, FDOT proved by a preponderance of the evidence that the

modification of PetitionersÔ driveway will improve safety and the operational

characteristics on SR 70, and will provide Petitioner with reasona ble access

through the indirect connection on Baldwin.

R ECOMMENDATION

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

R ECOMMENDED that Respondent, Department of Transportation, enter a final

order approving the closure of the ShopÔs 100 - foot driveway as part of the

State Road 70 project.

D ONE A ND E NTERED this 28th day of September , 2021 , in Tallahassee,

Leon County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

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 28th day of September , 2021 .

C OPIES F URNISHED :

Richard E. Shine, Esquire David Lambert Maassen

Department of Transportation 140 South Osceola Avenue

605 Suwannee Street Arcadia, Florida 34266

Tallahassee, Florida 3 2399

Kevin J. Thibault, P.E. , Secretary

Amber Greene, Clerk of Agency Department of Transportation

Proceedings Haydon Burns Building

Department of Transportation 605 Suwannee Street , MS 57

Haydon Burns Building Tallahassee, Florida 32399 - 0450

605 Suwannee Street , MS 58

Tallahassee, Florida 32399 - 0450

Sean Gellis, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street , MS 5 8

Tallahassee, Florida 32 399 - 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 Fin al Order in this

case.