Paradyne Corp. v. State, Dept. of Transp.

• Citation: 528 So.2d 921,13 Fla. L. Weekly 1477
• Decision Date: 24 June 1988
• Docket Number: No. 87-269,87-269
• Parties: 13 Fla. L. Weekly 1477 PARADYNE CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION and Irwin H. Miller, Sonya Miller, Philip Benjamin and Marilyn Benjamin, Appellees.
• Court: Court of Appeal of Florida (US)

Page 921

528 So.2d 921

13 Fla. L. Weekly 1477

PARADYNE CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION and Irwin H. Miller, Sonya Miller, Philip Benjamin and Marilyn Benjamin, Appellees.

No. 87-269.

District Court of Appeal of Florida First District.

June 24, 1988.

Rehearing Denied July 20, 1988.

John R. Bush and Douglas S. Gregory of Bush, Ross, Gardner, Warren & Rudy, P.A., Tampa, for appellant.

Maxine F. Ferguson, Tallahassee, for appellee Dept. of Transp.

Bruce Marger and David A. Thompson of Goldner, Reams, Marger, Davis, Piper & Bartlett, P.A., St. Petersburg, for appellees Millers & Benjamins.

SMITH, Chief Judge.

Paradyne Corporation (Paradyne) appeals a final order of the Department of Transportation (DOT), revoking its road connection permit and requiring Paradyne to submit a proposed redesign of the connection. The order provides that in the event Paradyne fails to submit an acceptable redesign, Paradyne's property will be subjected to a redesign of the connection mandated by DOT which would include construction of a 250-foot drive leading to the connection to be used both by Paradyne and adjoining landowners, the Millers and Benjamins (M & B), which drive would be mostly located on Paradyne's private property. We affirm that portion of DOT's order revoking Paradyne's permit, because Paradyne failed to construct the connection in accordance with the 1981 permit granted by DOT. We also hold that DOT can require Paradyne to submit a redesign of the connection due to the present safety hazards at the existing connection. § 335.18(1) and (3), Fla.Stat. (1985). However, we disapprove that portion of DOT's order requiring Paradyne to construct a drive on its private property for the use and benefit of other abutting landowners as an invalid exercise of the state's police power. Accordingly, we affirm the order in part, reverse in part, and remand for further proceedings.

Paradyne and M & B own adjacent properties on the south side of State Road 688, known as Ulmerton Road, a major east-west arterial road in Pinellas County. Paradyne operates a business on its property employing many people, while M & B's property, lying to the west of Paradyne, is at least partially undeveloped. Paradyne sought and obtained a permit in 1981 allowing access to Ulmerton Road at a light-controlled intersection. The traffic light is aligned with the north-south property line between Paradyne and M & B. The 1981 permit contemplated that the Paradyne and M & B properties have joint access to the light-controlled intersection by providing that the western side of the drive or access connection be constructed along the northern boundary of the properties beginning at a point approximately twenty feet inside M & B's eastern boundary line, thus providing a twenty-foot access to M & B's property, in addition to the portion of the connection extending eastward along the northern boundary of Paradyne's property. The connection was to be constructed on DOT's right-of-way, which extends thirty-eight feet from the berm of Ulmerton Road. However, as later determined in litigation which ultimately found its way to the appellate court, Paradyne Corp. v. Miller, 455 So.2d 432 (Fla. 2nd DCA 1984), the permit contained no provision regarding a 250-foot access road on the parties' private property. It is undisputed that Paradyne failed to construct the connection in accordance with the 1981 permit. Instead, Paradyne constructed the connection, as well as a private road on its property leading to it, by eliminating the twenty feet that would otherwise have served as a connection to M & B's property, with the result that only vehicles utilizing the Paradyne property would have access to the intersection. Thereafter, Paradyne refused to allow M & B to use the private road on its property to gain access to Ulmerton.

During the next several years, M & B sought relief as to its access problem in court. See, Paradyne Corp. v. Miller. However, in the interim, DOT determined that traffic conditions at the intersection had changed materially, necessitating a redesign and issuance of a new permit. The litigation between the parties then moved to the administrative forum when DOT, on March 31, 1986, issued a notice to show cause (NSC), prompting Paradyne to request a formal administrative hearing, in which M & B intervened. DOT charged in the proceedings below that the highway connection constructed by Paradyne was in violation of section 335.18(1) and (3), in that it was not constructed in accordance with the permit design plan, and that in its present state, the existing connection was causing undue disruption of traffic and creating safety hazards, necessitating a material redesign of the connection. DOT also required redesign of the intersection in accordance with a drawing which was identical to one prepared for M & B by Diaz-Seckinger & Associates, Inc. (DSA Group), in 1984.

The DSA redesign, which was prepared without input from Paradyne, proposes to alleviate traffic congestion due to the backup of vehicles turning left or southward into the Paradyne parking lot during peak traffic hours, by construction of a dual or double stacking area, 350-feet in length, for the westbound approach on Ulmerton Road, and a widened receiving approach on the property to the south to accommodate the dual left-turning traffic. The DSA design also calls for two westbound turning lanes out of the Paradyne property. The median barrier for the westbound traffic on Ulmerton Road would need modification. The need for these changes and DOT's authority to order them is not in dispute in this litigation. However, in addition to these modifications the redesign also calls for a 250-foot joint access road to the connection to be located on the private properties of Paradyne and M & B, which would require approximately 22,700 square feet for a joint use area, with 13,950 square feet located on Paradyne's property and 8,750 square feet located on M & B's property. This litigation focuses primarily upon Paradyne's objection to having its property subjected to joint use by the adjoining landowner as a condition to maintaining Paradyne's access to Ulmerton Road.

After the administrative hearing, the hearing officer entered a final order in which she found that there is a need for a major redesign of the intersection and Paradyne's connection, due to the increased traffic entering and exiting Paradyne's property. She noted that there is no practical method of design that would allow two separate accesses for Paradyne's and M & B's use. The provision of separate accesses would create a five-lead intersection which would cause considerable traffic difficulties. DOT's traffic engineer would not approve the traffic signal operation which would be required if there were separate access roads ingressing and egressing the Paradyne and M & B properties.

The hearing officer concluded, based upon the undisputed evidence, that Paradyne did not construct its connection with Ulmerton Road in accordance with the schematic drawing attached to its original 1981 permit; and, consequently, that DOT would have the authority to either require compliance with the permit, deny Paradyne access, or require a redesign of the project. While Paradyne was amenable to constructing the connection in accordance with the original permit drawing, this was found to be no longer a viable solution to the problem, as the evidence supported the need for a major redesign of the intersection and Paradyne's connection due to the increased traffic entering and exiting Paradyne's property. Although the evidence did support a major redesign, the hearing officer concluded that DOT could not impose upon Paradyne the DSA Group design as there was insufficient evidence to demonstrate that either traffic congestion or safety hazards dictated any requirements regarding the design of Paradyne's private road, other than its width on or near the right-of-way. Further, she concluded that neither its location on Paradyne's private property, its length, or its use or nonuse by M & B was shown to constitute an impact upon traffic or safety considerations. She concluded that while DOT may be able to require that a permittee's receiving approach on private property be a certain length, width or configuration so as to allow the lighted intersection to be utilized as designed with regard to the flow of traffic, DOT could not designate the actual location or specification of the entire private roadway or require that a neighboring land owner have access to the private road.

DOT accepted the hearing officer's findings of fact but disagreed with some of her conclusions of law. Contrary to the conclusion of the hearing officer, DOT determined that subsequent to the issuance of the 1981 permit, traffic has increased on Ulmerton to a degree which necessitates a modification and redesign of the private road located on Paradyne's property, as well as a redesign of the connection and intersection, in order for the highway connection to meet the standards of section 335.18. In essence, DOT concluded that it could require Paradyne to construct a 250-foot joint use road on Paradyne's private property, which road would be shared with M & B, as a condition of maintaining a connection to Ulmerton Road. Accordingly, DOT revoked the driveway permit issued to Paradyne in 1981, effective ninety days hence, giving Paradyne sixty days to present to the department for approval a design for a revised connection to Ulmerton which would allow access for both Paradyne and M & B and accommodate current traffic conditions in a safe and efficient manner. The order further provides that if within sixty days the department has not issued a revised permit based on plans submitted by Paradyne, the department shall issue a redesign permit for the Ulmerton Road intersection using the DSA Group design.

In its brief, Paradyne...