95-001784 R. C. Lindsey vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, January 30, 1996.

Summary: Petitioner without standing to challenge proposed closure of median opening on state road where he did not own property abutting state road.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R. C. LINDSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1784

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on

September 28, 1995, in Stuart, Florida, before Stuart M. Lerner, a duly

designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. C. Lindsey, pro se

6368 Southeast Held Court

Stuart, Florida 34997

For Respondent: Francine M. Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

1. Whether Petitioner's request for an administrative hearing on the

Department of Transportations's planned closure of the median opening on State

Road 5 (hereinafter referred to as "U.S. 1") at Held Court in Stuart, Florida,

should be dismissed on the ground that Petitioner lacks standing to challenge

such planned action?

2. If not, whether Petitioner's challenge should be sustained?

PRELIMINARY STATEMENT

In a letter dated February 28, 1994, the Department of Transportation

(hereinafter referred to as the "Department") advised Petitioner that, based on

"comments [Petitioner had] made at [a] Public Hearing held on December 8, 1993,"

it had "reevaluated the proposed median modifications" which were a part of

State Project No. 89010-1500/1501 and that, after such a reevaluation, had

determined to keep "the closing of the break [on U.S. 1] at Held Court" in its

"plan." In response to the Department's letter, Petitioner sent the Department

a letter, dated March 26, 1994, which read as follows:

This will acknowledge receipt of your letter

dated February 28, 1994 and post-marked March

21, 1994 pertaining to the above project [State

Project No. 89010-1500/1501].

I am very much opposed to your intended plans

of closing off the intersection of Held Court

and U.S. [Number]1.

Please accept this as my request for an

administrative hearing to air my objections.

I use this intersection too much as part of

my daily life to permit its closing. My

ordinary commerce and very life itself will

be jeopardized with the closing of the inter-

section of U.S. [Number]1 and Held Court.

On September 19, 1994, the Department issued an order directing Petitioner

to show cause in writing within 14 days why his request for an administrative

hearing should not be dismissed on the ground that he had "failed to allege

facts in his request for hearing to demonstrate standing to challenge the

Department's construction plans." On October 3, 1994, Petitioner filed an

Answer to Show Cause Order and Amended Petition (hereinafter referred to as

Petitioner's "Amended Petition"). Appended to the Amended Petition were the

affidavits of six of Petitioner's neighbors who, according to their affidavits,

also "opposed [for economic and safety reasons] the Department of

Transportation['s] plan to close the media[n] opening at Held Court and U.S.

[Number]1. 1/

On April 11, 1995, the Department referred the matter to the Division of

Administrative Hearings (hereinafter referred to as the "Division"). The

Department's referral letter to the Division read as follows:

Please arrange for an administrative hearing

pursuant to Section 120.57(1), Florida Statutes,

in accordance with the enclosed petition and

associated documents.

Issues:

Whether Petitioner has standing to request a

hearing on the Department's plans to close a

median opening at the intersection of State

Road 5 and Held Court in Stuart.

Whether the Department's action would deprive

Petitioner of the right of reasonable access

to State Road 5.

Whether the Department's proposed action of

closing the median opening in State Road 5 is

without authority and an abuse of discretion.

The administrative hearing that the Department asked the Division to

conduct was originally scheduled for August 17, 1995. At the Department's

request, the hearing was rescheduled for September 28, 1995.

On September 21, 1995, seven days before the administrative hearing was

scheduled to commence, the Department filed a Motion for Recommended Order of

Dismissal in which it argued that a "recommended order of dismissal should be

issued in this case because Petitioner, R.C. Lindsey, lacks standing to request

a hearing under section 120.57, Florida Statutes, in that Petitioner's property

does not abut the State Highway System." On the following day, September 22,

1995, the Hearing Officer issued an order notifying the parties that he would

"defer ruling on the Motion until after the conclusion of the final hearing in

the instant case," that the parties would have the opportunity at hearing to

present evidence and argument on the issues raised in the Motion and that they

would have an additional chance to present argument on these issues in their

post-hearing submittals.

The final hearing in this case was held on September 28, 1995, as

scheduled. At hearing, a total of four witnesses testified: Norman Bryant, the

Florida regional manager of the engineering firm retained by the Department to

design the road project at issue in the instant case; 2/ Jonathan Overton, the

Department's District 4 Access Management Engineer; 3/ Milton Quall, a

resident of Held Court; and Petitioner. In addition to the testimony of these

four witnesses, a total of 15 exhibits (Petitioner's Exhibits 1 through 13 and

Respondent's Exhibits 1 and 2) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing on September

28, 1995, the Hearing Officer, on the record, advised the parties of their right

to file proposed recommended orders and established a deadline (30 days from the

date of the Hearing Officer's receipt of the transcript of the hearing) for the

filing of proposed recommended orders. The deadline was subsequently extended,

at the Department's request (and without objection by Petitioner), to January

19, 1996. 4/

On November 20, 1995, Petitioner filed with the Hearing Officer what he

represented to be the results of a survey he had conducted on October 12, 1995,

"of the roads and drives that intersect with the U.S. [Number]1 from Cove Road

South to Morningside Drive." Accompanying the survey was a pleading in which

Petitioner stated the following:

The attached survey affidavit is presented

to the Hearing Officer as additional documents

in this case.

This shows that the approximately 1.2 mile

section of U.S. [Number]1, (SR [Number]5)

from Cove Road south to Morningside Drive is

intersected 26 times and that 103 stores or

commercial establishments are [a]ffected by

these intersections together with about 2000

residential units.

The Department of Transportation has design-

ated the improvements to this section of U.S.

[Number]1, (SR [Number]5) as "High Speed Rural

Highway."

The Hearing Officer will treat this pleading (which the Department has

moved to strike) as a motion requesting that the evidentiary record in this case

be reopened for the purpose of allowing Petitioner the opportunity to offer the

survey into evidence. Inasmuch as the information contained in the survey, even

if deemed to be true and accurate and taken into consideration by the Hearing

Officer, would not alter the outcome of the instant case, the motion is hereby

DENIED. 5/

Petitioner and the Department filed proposed recommended orders on November

30, 1995, and January 16, 1996, respectively. These proposed recommended orders

have been carefully considered by the Hearing Officer. The "findings of fact"

set forth in these proposed recommended orders are specifically addressed in the

Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. For approximately the past 35 years, Petitioner has owned property on

Held Court 6/ in the Vista Salerno subdivision in unincorporated Martin

County, Florida. On the west, the property extends to Dixie Ross Road, an

unpaved, private street in the Vista Salerno subdivision. Dixie Ross Road runs

parallel to U.S. 1, a north-south roadway that is part of the State Highway

System. On the east, the property approaches, but does not directly abut, U.S.

1.

2. Petitioner's residence is located on the property.

3. Petitioner also operates his commercial plumbing business, R.C. Lindsey

Plumbing, Inc., from a structure (approximately 200 feet from his residence)

located on the property.

4. Large trucks make daily deliveries to Petitioner's business.

5. There are no other commercial establishments located on Held Court or

elsewhere in the Vista Salerno subdivision.

6. Petitioner owns other lots in the Vista Salerno subdivision. None of

these other lots directly abuts U.S. 1.

7. The Vista Salerno subdivision lies west of U.S. 1. It was created in

1954. There are approximately 100 homes in the subdivision.

8. The subdivision has three paved roads: Held Court; Parkwood Drive;

and Lillian Court. Each runs east-west and connects with U.S. 1. Parkwood

Drive is 898 feet south of Held Court. Lillian Court is 993 feet north of Held

Court.

9. Held Court is a Martin County-maintained roadway. Unlike U.S. 1, Held

Court is not part of the State Highway System. Approximately 600 feet west of

U.S. 1, Held Court turns into Robert Loop Road, an unpaved, private roadway.

10. Since approximately 1970, there has been a full median opening (with a

left hand storage lane) on U.S. 1 at Held Court. As a result, northbound, as

well as southbound, motorists on U.S. 1 are able to turn directly from U.S. 1

onto Held Court. Likewise, motorists exiting the Vista Salerno subdivision via

Held Court are able to turn right and head south on U.S. 1 or turn left and go

north on U.S. 1.

11. The Department proposes to close the median opening that now exists on

U.S. 1 at Held Court as part of a proposed road improvement/widening project

(State Project No. 89010-1500/1501, hereinafter referred to as the "proposed

project.") The proposed project involves the widening of U.S. 1 (from an

existing four-lane divided roadway to a six-lane divided roadway) in

unincorporated Martin County (south of the City of Stuart city limits) from

south of County Road 708 to north of Salerno Road. (Held Court is between

County Road 708 and Salerno Road).

12. This segment of U.S. 1 has been classified as a Class 3 roadway under

the Department's access management classification system. It has an existing

traffic volume of 27,000 vehicles a day. In 20 years it is projected to have a

traffic volume of 45,000 vehicles a day. The proposed project will enable this

roadway segment to handle the projected increase in traffic volume at a design

speed of 55 miles an hour.

13. The plans for the proposed project are in the preliminary design phase

and are approximately 30 percent completeaffic studies (of U.S. 1 and the

major intersecting roadways feeding traffic onto U.S. 1 in the area of the

proposed project) have been done. Held Court is not one of these major

intersecting roadways and therefore has not been the subject of any traffic

study done in conjunction with the proposed project.

14. The Department's District 4 Access Management Engineer has made

recommendations regarding the location of median openings which have been

incorporated in the plans that have been developed for the proposed project.

15. Martin County (which has jurisdiction over side streets that intersect

with U.S. 1 in the area of the proposed project) was asked to provide its input

regarding the location of median openings. All but one of its recommendations

(that relating to Parkwood Drive) have been adopted in the plans for the

proposed project.

16. These plans, which were formulated in accordance with generally

accepted principles of traffic engineering and safety design, provide for the

following median openings on U.S. 1 in the vicinity of Held Court: a full

median opening (with a left turn storage lane) at Lillian Court, 993 feet north

of Held Court; a full median opening (with a left turn storage lane) at

Morningside Drive, south of Held Court; a directional median opening (with a

left turn storage lane for southbound traffic) at Village Road,7 between

Morningside Drive and Held Court, approximately 350 to 400 feet south of the

latter; and a directional median opening (with a left turn storage lane for

northbound traffic) at Parkwood Drive, between Village Road and Morningside

Drive, 898 feet south of Held Court. 8/

17. The Department does not propose to entirely eliminate direct access

between U.S. 1 and Held Court. Motorists will still have direct access to the

southbound lanes of U.S. 1 from Held Court. Likewise, southbound motorists on

U.S. 1 will still be able to turn directly onto Held Court.

18. Access between U.S. 1 and Held Court, however, will be more limited

than it is presently. Northbound motorists on U.S. 1 will no longer be able to

turn left and directly access Held Court from U.S. 1, nor will motorists on Held

Court any longer be able to turn left onto U.S. 1 and head north.

19. Reasonable and safe, although somewhat more inconvenient, alternatives

will remain for these motorists, however.

20. Northbound motorists on U.S. 1 will be able to access Held Court by

making a U-turn 993 feet north of Held Court at the full median opening at

Lillian Court 9/ and then going south on U.S. 1 and turning right onto Held

Court. Alternatively, they will be able to turn left at either the directional

median opening at Parkwood Drive (before Held Court) or at the full median

opening at Lillian Court (after Held Court), travel west one block, turn onto

Dixie Ross Road and then take Dixie Ross Road (north if coming from Parkwood

Drive or south if coming from Lillian Court) to Held Court.

21. Motorists on Held Court desiring to travel north on U.S. 1 will be

able to turn right on U.S. 1 and travel south until the directional median

opening at Village Road, where they will be able make a U-turn onto the

northbound lanes of U.S. 1. 10/ Another option they will have will be to take

Dixie Ross Road to Lillian Court, travel east one block, and then turn left

(north) onto U.S. 1.

22. Although some of the travelling public (including Petitioner, his

neighbors, his employees and those making deliveries to his business) may be

slightly inconvenienced as a result of the closure of the median opening on U.S.

1 at Held Court, it is prudent, from a traffic engineering and safety

perspective, to close this median opening as part of the proposed project.

23. In order to meet generally accepted roadway and traffic design

standards, the storage lane for southbound traffic on U.S. 1 turning left onto

Village Road will need to extend north beyond Held Court. Motorists using a

median opening at Held Court would have to cut across this storage lane.

Traffic safety therefore would be seriously compromised if, in addition to a

directional median opening at Village Road (with a left turn storage lane that

extended past Held Court), there was also a median opening at Held Court (only

350 to 400 feet to the north of Village Road).

24. The elimination of the median opening at Held Court is, on balance, a

feature of the proposed project that will promote, rather than, as Petitioner

argues, jeopardize, the safety of motorists. 11/

25. Several years ago, (it is unclear precisely how many), the Department

completed another road improvement/widening project on U.S. 1. This previous

project involved a roadway segment between Stuart and Port St. Lucie (north of

the roadway segment which is the subject of the proposed project in the instant

case). No median openings were closed as a part of this previous project and a

full median opening was provided for a Florida Power and Light transformer

vault.

CONCLUSIONS OF LAW

26. Sections 335.18 through 335.188, Florida Statutes, constitute the

"State Highway System Access Management Act" (hereinafter referred to as the

"Act").

27. The Act defines the scope of the Department's authority to regulate

access to the State Highway System and prescribes the manner in which that

authority must be exercised.

28. Section 335.181(2), Florida Statutes, addresses the extent to which

the Department may exercise its regulatory authority where there is an abutting

property owner. It provides, in pertinent part, as follows:

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 access to the abutting state

highway but does not have the right of

unregulated access to such highway. The

operational capabilities of an access connec-

tion 12/ 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 access rights of an owner of property

abutting the State Highway System are subject to

reasonable regulation to ensure the public's

right and interest in a safe and efficient

highway system. This paragraph does not auth-

orize the department to deny a means of reason-

able access to an abutting state highway,

except on the basis of safety or operational

concerns as provided in s. 335.184.

29. Section 335.184, Florida Statutes, provides, in pertinent part, as

follows:

(3) A property owner shall be granted a

permit for an access connection to the

abutting state highway, unless the permitting

of such access would jeopardize the safety of

the public or have a negative impact on the

operational characteristics of the highway.

Such access connection and permitted turning

movements shall be based upon standards and

criteria adopted, by rule, by the department.

30. These "standards and criteria adopted, by rule, by the department" are

found in Chapter 14-97, Florida Administrative Code.

31. They provide, in pertinent part, that on a Class 3 roadway, like the

segment of U.S. 1 at issue in the instant case, the "minimum median opening

spacing" is 0.5 miles for a "full median opening" and 1320 feet for a

"directional median opening." Rule 14-97.003, Fla. Admin. Code. 13/

32. "Minimum median opening spacing," as that term is used in Chapter 14-

97, Florida Administrative Code, is defined in Rule 14-97.002(20), Florida

Administrative Code, as follows:

[T]he minimum allowable distance between open-

ings in a restrictive median 14/ to allow for

crossing the opposing traffic lanes to access

property or for crossing the median to travel

in the opposite direction (U-turn). The mini-

mum spacing or distance is measured from center-

line to centerline of the openings along the

traveled way.

33. A "full median opening," as that term is used in Chapter 14-97,

Florida Administrative Code, is defined in Rule 14-97.002(15), Florida

Administrative Code, as follows:

[A]n opening in a restrictive median designed

to allow all turning movements to take place

from both the state highway and the adjacent

connection.

34. A "directional median opening," as that term is used in Chapter 14-97,

Florida Administrative Code, is defined in Rule 14-97.002(11), Florida

Administrative Code, as follows:

[A]n opening in a restrictive median which

provides for U-turn only, and/or left-turn in

movements. Directional median openings for

two opposing left or "U-turn" movements along

one segment of road are considered one

directional median opening. 15/

35. The Department, in the instant case, has proposed a change in the

design of a segment of U.S. 1 in unincorporated Martin County, which includes

the closure of the full median opening that now exists at Held Court.

Petitioner has requested a Section 120.57 formal hearing on the proposed closure

of this median opening. The Department has referred the matter to the Division,

with the request that the Division hearing officer assigned to hear the case

initially address the issue of Petitioner's standing to challenge (through the

provisions of Chapter 120, Florida Statutes) the Department's proposed action.

36. "To establish entitlement to a [S]ection 120.57 formal hearing, one

must show that its 'substantial interests will be affected by proposed agency

action.' This, in turn, requires a showing that (1) the proposed action will

result in injury-in-fact which is of sufficient immediacy to justify a hearing;

and (2) the injury is of the type that the statute pursuant to which the agency

has acted is designed to protect." Fairbanks, Inc., v. Department of

Transportation, 635 So.2d 58, 59 (Fla. 1st DCA 1994); Friends of the

Everglades, Inc., v. Board of Trustees of the Internal Improvement Trust Fund,

595 So.2d 186, 188 (Fla. 1st DCA 1992). No such showing has been made by

Petitioner in the instant case.

37. Petitioner is not an "owner of property which abuts a road on the

State Highway System" entitled to "reasonable access" under the Act. Rather, he

owns property abutting a Martin County roadway (Held Court) that connects with

(and thereby provides Petitioner access to) a road on the State Highway System

(U.S. 1). Moreover, even assuming arguendo that the Act granted Petitioner a

right of "reasonable access" from Held Court to U.S. 1, Petitioner would not be

deprived of such "reasonable access" if the Department closed the median opening

on U.S. 1 at Held Court and otherwise carried out its present plans for the

proposed project inasmuch as the connection between Held Court and the

southbound lanes of U.S. 1 would remain open under such circumstances. See

Division of Administration, State Department of Transportation v. Capital Plaza,

Inc., 397 So.2d 682, 683 (Fla. 1981)(construction of "a raised four-foot-wide

median" on roadway preventing northbound drivers from "turn[ing] across traffic

directly into Capital's service station" did not constitute a "deprivation of

access" inasmuch as there was "still free, unimpeded access to Capital's service

station albeit only by southbound traffic"); Division of Administration, State

Department of Transportation v. Palm Beach West, Inc., 409 So.2d 1130, 1131

(Fla. 4th DCA 1982)(construction of a "median strip" did not amount to denial of

access). Although Petitioner (and those who have occasion to travel to and from

his home or business) may suffer some slight inconvenience as a result of the

closure of the median opening on U.S. 1 at Held Court, such inconvenience is

insufficient to give Petitioner standing to challenge the Department's proposed

action to close this median opening. 16/

38. In any event, Petitioner's challenge to such proposed action is

without merit. Determining to close the median opening as part of the proposed

project has not been shown to be anything other than the sound exercise of the

Department's discretion to plan and design state roadways. See Department of

Transportation v. Lopez-Torres, 526 So.2d 674, 676 (Fla. 1988)(Department has

"plenary power to plan and construct state roads and bridges;" the Department's

power, however, "is not absolute and is limited to the lawful exercise of its

discretion"). The greater weight of the record evidence establishes that, on

balance, the closure of the median opening will promote and protect, rather than

endanger, the public health, safety and welfare and that it is therefore

desirable, from an operational and safety perspective, to close the median

opening as part of the proposed project. Furthermore, to include a median

opening at Held Court as part of the proposed project would violate the spacing

requirements of Chapter 14-97, Florida Administrative Code. 17/ See Section

335.184(3), Fla. Stat.("Such access connection and permitted turning movements

shall be based upon standards and criteria adopted, by rule, by the

Department"); Gadsen State Bank v. Lewis, 348 So.2d 343, 345 n.2 (Fla. 1st DCA

1977)("[A]gencies must honor their own substantive rules until . . . they are

amended or abrogated").

39. In view of the foregoing, the Department should reject Petitioner's

challenge to the proposed closure of the median opening on U.S. 1 at Held Court.

RECOMMENDATION

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

RECOMMENDED that the Department of Transportation enter a final order

rejecting Respondent's challenge to the Department's proposed closure of the

median opening on U.S. 1 at Held Court.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of

January, 1996.

___________________________________

STUART M. LERNER, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 1996.

ENDNOTES

1/ The affidavits of three additional opponents of the planned median closing

were offered and received into evidence at hearing (as Petitioner's Exhibit 3).

2/ Bryant testified, without objection, as an expert in the field of

transportation engineering.

3/ Overton testified, without objection, as an expert in the fields of traffic

engineering and access management.

4/ The Hearing Officer received the hearing transcript on November 13, 1995.

Accordingly, the original deadline for the filing of proposed recommended orders

was December 13, 1995.

5/ This case does not involve a request made in accordance with Rule 14-97.005,

Florida Administrative Code, to review the access classification of the segment

of U.S. 1 that is the subject of the survey.

6/ The property directly abuts Held Court.

7/ Village Road serves a large residential area to the east of U.S. 1. It

serves many more homes, and consequently carries substantially more traffic,

than does Held Court.

8/ The proposed directional median openings at Village Road and Parkwood Drive

will form, what is referred to as, a "U-turn pair." At present, there are full

median openings (with left turn storage lanes) at both Village Road and Parkwood

Drive. Martin County recommended that a full median opening remain at Parkwood

Drive.

9/ Studies conducted by the Department have shown that, on a six-lane divided

roadway, a U-turn (unaided by a traffic signal or sign) is a safer maneuver than

a left-hand turn onto the divided roadway (unaided by a traffic signal or sign).

10/ The trucks that make deliveries to Petitioner's plumbing business and the

other vehicles that now use the median opening at Held Court will be able to

make this U-turn, as well as the previously discussed U-turn at the directional

median opening at Village Road, safely.

11/ In making this finding, the Hearing Officer has relied upon the expert

testimony presented by the Department. (Petitioner did not present any expert

testimony in support of his position.)

12/ A "connection," as that term is used in the Act, "means driveways, streets,

turnouts, or other means of providing for the right of reasonable access to or

from the State Highway System."

13/ Rule 14-97.003(1)(b), Florida Administrative Code, which became effective

on February 13, 1991, provides that "existing median openings . . are not

required to meet . . . the standards of the assigned classification" of the

roadway, but they "shall be brought into reasonable conformance with the

standards of the assigned classification . . . where new connection permits are

granted for significant changes in property use or as changes to the roadway

design allow."

14/ A "restrictive median," as that term is used in Rule 14-97.002(20), Florida

Administrative Code, is "the portion of a divided highway or divided driveway

physically separating vehicular traffic traveling in opposite directions." The

term includes "physical barriers that prohibit movement of traffic across the

median such as a concrete barrier, a raised concrete curb and/or island, and a

grassed or swaled median." Rule 14-97.002(26), Fla. Admin. Code. A "non-

restrictive median," on the other hand, is "a median or painted centerline which

does not provide a physical barrier between center traffic turning lanes or

traffic lanes traveling in opposite directions." Rule 14-97.002(23), Fla.

Admin. Code.

15/ It is apparent from a reading of the language of Rule 14-97.002(11),

Florida Administrative Code, that an opening need not allow for opposing left

turn movements in order to be a "directional median opening" subject to the

spacing requirements of Chapter 14-97, Florida Administrative Code.

16/ Contrary to the assertion made by Petitioner, he will not be substantially

affected in any adverse way "safety wise economically, and socially by this

proposed closure of the median opening."

17/ Although Petitioner has suggested that the Department would be engaging in

unfavorable, disparate treatment toward him and the other property owners on

Held Court were it to close the median opening on U.S. 1 at Held Court, the

record evidence is insufficient to establish that, during the time the spacing

requirements of Chapter 14-97, Florida Administrative Code, have been in effect,

the Department, as part of a change in the design of a state roadway, has failed

to close any median opening that did not meet these spacing requirements and

that was otherwise comparable in all material respects to the median opening at

Held Court.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1784

The following are the Hearing Officer's specific rulings on the "findings

of fact" set forth in the parties' proposed recommended orders:

Petitioner's Proposed Findings of Fact

1-3. Accepted and incorporated in substance, although not necessarily

repeated verbatim, in this Recommended Order.

4. Rejected because, even if it had sufficient evidentiary/record support

and was accepted as true, it would not alter the outcome of the instant case.

5. Rejected because it is contrary to the greater weight of the evidence.

6. Accepted and incorporated in substance.

7. Rejected because it is contrary to the greater weight of the evidence.

8-11. Accepted and incorporated in substance.

The Department's Proposed Findings of Fact

1-6. Accepted and incorporated in substance.

7. First sentence: Accepted and incorporated in substance; Second

sentence: Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

8. Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

9. First sentence: Accepted and incorporated in substance; Second and

third sentences: Rejected as findings of fact because they are more in the

nature of conclusions/statements of law.

10. To the extent that this proposed finding states that the proposed

location, design and spacing of the median openings on the segment of U.S. 1 at

issue in the instant case meet the requirements set forth in the Department's

rules, it has been rejected as a finding of fact because it is more in the

nature of a conclusion of law. Otherwise, it has been accepted and incorporated

in substance.

11-15. Accepted and incorporated in substance.

16-18. To the extent that these proposed findings make reference to the

requirements set forth in the Department's rules, they have been rejected as

findings of fact because they are more in the nature of conclusions/statements

of law. Otherwise, they have been accepted and incorporated in substance.

19. Accepted and incorporated in substance.

20. First sentence: Not incorporated in this Recommended Order because it

would add only unnecessary detail to the factual findings made by the Hearing

Officer; Second sentence: Accepted and incorporated in substance.

21. Rejected as a finding of fact because it is more in the nature of a

statement of law.

22. Accepted and incorporated in substance.

COPIES FURNISHED:

R. C. Lindsey

6369 Southeast Held Court

Stuart, Florida 34997

Francine M. Ffolkes, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary

Department of Transportation

ATTN: Diedre Grubbs

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period of time within which to

submit written exceptions. You should contact the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this recommended order. Any exceptions to this recommended order

should be filed with the agency that will issue the final order in this case.