Administrative law judge asked for responses by March 15 on whether hearing should be conducted to determine ‘standing’ of south Siesta resident challenging FDOT’s decision to issue permit for stoplight
The Florida Department of Transportation (FDOT) has asked the chief judge of the Florida Division of Administrative Hearings (DOAH) to arrange for a proceeding in a case involving the department’s plans to erect a stoplight at the intersection of Avenue B and C on Stickney Point Road.
That hearing would allow south Siesta Key resident James P. Wallace III to challenge FDOT’s December 2020 decision to allow the stoplight to be installed. The administrative law judge presiding over the case would determine whether FDOT “is required to reverse [its] decision” to issue the necessary permit for the new traffic signal, FDOT’s March 15 letter said.
The administrative law judge assigned to the case, Linzie F. Bogan, had issued a March 3 Show Cause order, calling for the parties to respond to the issue of whether Wallace had “standing” to contest FDOT’s decision about the traffic signal. In her order, she questioned whether FDOT had complied with the applicable section of the Florida Statutes in regard to Wallace’s petition to try to prevent the traffic light from being erected.
Bogan earlier had scheduled an April 15 hearing on the standing issue. However, she wrote in the Show Cause order that she did not believe FDOT had satisfied all the facets of Section 120.569 of the state statutes, as required. Therefore, she called for the parties in the case to offer arguments in regard to whether the April 15 hearing should take place.
As Cornell University’s Legal Information Institute defines it, a person has “standing” in a case if the person can show that he or she has “sustained or will sustain direct injury or harm” from a specific action and that the harm can be remedied by a court.
Wallace has maintained that the planned traffic signal at Avenue B and C would exacerbate traffic congestion on Stickney Point Road, which is the primary access to south Siesta Key. Given the fact that vehicle back-ups through the U.S. 41/Stickney Point Road intersection are common during tourist season, Wallace has pointed out that south Siesta residents already feel as though they are “marooned” in their homes during the peak driving times of the day.
He also has cited safety concerns, with the potential for emergency vehicles to be caught up in traffic as they try to get on or off Siesta Key.
After the Kimley-Horn consulting firm undertook a traffic analysis for the Siesta Promenade mixed-use project, which is planned in the northwest quadrant of the U.S. 41/Stickney Point Road intersection, company engineers recommended the stoplight at Avenue B and C. They said it would be necessary to facilitate traffic flow in the area after the development has been completed.
As approved by the Sarasota County Commission in December 2018, Siesta Promenade would encompass 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space.
The commissioners stipulated that the stoplight at Avenue B and C would have to be in place before construction of Siesta Promenade could begin. Last year, a Kimley-Horn engineer applied for the necessary FDOT permits for the traffic signal to be erected.
Benderson Development Co. affiliate Siesta 41 Associates LLP, which officially is the developer of Siesta Promenade, was allowed to intervene in Wallace’s DOAH case.
In its March 15 response to Administrative Law Judge Bogan’s Show Cause order, Siesta 41 contended that “the matter [should be] relinquished to DOT” for issuance of an order dismissing an amended petition that Wallace’s attorney, Ralf Brookes of Cape Coral, filed in the case in early February. The company argued that that petition failed to make the case that Wallace has standing to protest the stoplight installation.
“It is not disputed that the Siesta Promenade development will result in additional traffic on Stickney Point Road,” Siesta 41’s attorneys wrote, referencing a traffic signal analysis undertaken on July 22, 2020. “However, this fact is not material to the issue of whether or not Petitioner has standing to challenge the issuance of a driveway connection permit from DOT,” the attorneys added.
Susan L. Stephens and Felicia L. Kitzmiller of the Tallahassee firm Hopping, Green and Sams are representing Siesta 41.
“There are no issues of disputed material fact to resolve on the issue of Petitioner’s standing,” they wrote in their response, even if the facts alleged to support standing in Wallace’s amended petition are taken to be true. As a matter of law, the interests that Wallace “recites as being affected are not legally cognizable or are remote and speculative,” the Siesta 41 attorneys added.
They were referencing a 1981 Florida First District Court of Appeal ruling in Agrico Chem. Co. v. Dep’t of Envtl. Regulation as the basis for their assertion.
FDOT’s explanation
In FDOT’s response to the Show Cause order, the department’s assistant general counsel, Richard E. Shine, pointed out that the permit the department issued to the Kimley-Horn engineer in late 2020 “authorizes construction of three access connections from Stickney Point Road to [Siesta Promenade]. Additionally,” he continued, the permit “includes a reference to authorization for a traffic control device in the form of a traffic light at an existing intersection of Stickney Point Road and Avenue B and C. The existing three-legged intersection will be converted to a four-legged signalized intersection,” Shine added. “The remaining two access connections from Stickney Point Road to [Siesta Promenade] are not signalized.”
Shine then explained the background of the case, noting that on Jan. 28, after analyzing Wallace’s initial petition, FDOT issued an Order of Dismissal Without Prejudice, meaning Wallace could file an amended version seeking to correct insufficiencies in the first one.
FDOT found that that original petition did not explain how Wallace’s “substantial interests” would be affected by the stoplight permit, Shine continued, adding that the petition did not identify specific rules or statutes that necessitated the reversal of FDOT’s decision or a modification of it.
Then, on Feb. 15, Shine wrote, “after careful review” of Wallace’s amended petition — as required for the department to comply with Section 120.569(2)(c)(d) of the Florida Statutes — FDOT determined that the allegations in that document, “taken as true, appear to be in substantial compliance” with the applicable requirements. Therefore, FDOT forwarded it to DOAH “for consideration by an Administrative Law Judge.”
That Feb. 15 letter, Shine pointed out, “identified the issue as [to] whether [Wallace] has standing to challenge the Department’s decision to issue a permit that includes the planning level decision to install a traffic control device on Stickney Point Road at the Avenue B and C intersection for the Siesta Promenade Development.”
Shine also cited a 2004 Florida First District Court of Appeal ruling. It said that in making a determination about whether a party has standing, the allegations contained in the party’s petition “must be taken as true,” he noted.
With its referral of Wallace’s amended petition to the DOAH, Shine added, “it was the Department’s intention that [Wallace] would be provided an opportunity to prove-up his standing at or before a de novo administrative hearing at DOAH.”
Cornell’s Legal Information Institute explains that de novo means “from the new.” The Institute adds, “When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous court to hear the case.”
Further details of Siesta 41’s opposition
In arguing that Wallace has no standing to challenge FDOT’s traffic signal permit, the Siesta Promenade developer, Siesta 41, pointed out that in his amended petition, Wallace contended that the stoplight “‘will cause [him] to become stuck in additional traffic congestion [and] [make] it more difficult for him to leave and return to Siesta Key …’, and, again ‘make it more difficult, and time consuming, for him to access his home …’”
“This case rests squarely on all fours with the Sakata Seed decision,” Siesta 41 added. In that case, the company pointed out, “an abutting [landowner’s] left-turn right of access was affected by the DOT’s decision to construct a raised median …” The final ruling in Sakata Seed made it clear that state law does not provide a remedy to challenge DOT’s planning-level decision to install a traffic signal, Siesta 41 maintained.
“In this case,” Siesta 41 continued, Wallace “is not an abutting property owner, but admittedly lives three miles from the site of the proposed traffic signal — on the other side of a drawbridge which provides a far greater traffic interruption than the proposed traffic light … and [he] cannot allege even an affected statutory right of access.”
In a 2014 case, the company pointed out, the Florida First District Court of Appeal ruled that for a person to prove standing, “‘[t]he injury or threat must be both real and immediate, not conjectural or hypothetical.’”
“This is, at its core, a challenge asserting that [Wallace] has a right to prevent an increase in traffic,” Siesta 41 added. However, “[T]he Florida Supreme Court has held that there is no cognizable interest in the flow of traffic on a public highway or even in the continued existence of the highway itself, let alone a cognizable interest in ‘time lost’ or the potential to be ‘stuck in additional traffic congestion’ or to avoid ‘stop and go’ traffic. … There is simply no legally protectable interest in being able to travel a certain speed in a certain amount of time upon a roadway or in preventing an increase in traffic,” Siesta 41 emphasized, referring to two judicial precedents.
Wallace contends that those cases “did not deal with challenges to driveway connection permits,” Siesta 41 continued. “However, these cases addressed the parameters of the right of reasonable access, which is referenced in and regulated by [Section 335.181(2)(a) of the Florida Statutes] and which forms the basis for DOT’s rules governing access connection permits.”
Further, Siesta 41 pointed out, Wallace offered “a generalized concern that Stickney Point Road is used ‘for evacuation and emergency EMS vehicles’ in an attempt to assert the interests of all of the residents of Siesta Key.”
“If such broad and indeterminate statements were sufficient to confer standing,” Siesta 41 argued, “the doctrine could be contorted to permit the standing of any party who may, at some point, have some type of emergency that may require responders to traverse the route. This would not serve the long-established purpose of standing, to narrow the scope of permissible challengers to only those who would be genuinely affected by the decision.”
Siesta 41 added, “Section 335.184(3) [of the Florida Statutes] provides that a property owner shall be granted a permit for an access connection to the abutting state highway unless the permitting of such access connection ‘would jeopardize the safety of the public or have a negative impact … upon the operational characteristics of the highway. Such access connection and permitted turning movements shall be based on standards and criteria adopted, by rule, by [FDOT]’ (emphasis added).”