STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARDEE COUNTY and MITCHELL HOPE, )

)

Petitioners, )

)

vs. ) CASE NO. 76-1703

)

FLORIDA DEPARTMENT OF ) TRANSPORTATION and SEABOARD ) COASTLINE RAILROAD COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held in the above styled cause on December 6, 1976 at 11:00 a.m. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, in the State Office Building, Winter Park, Florida.

APPEARANCES

For Petitioner: R. Earl Collins, Esquire County Post Office Box 608

Wauchula, Florida 33873

For Petitioner Brian J. Pappas, Esquire Hope 305 North Sixth Avenue

Wauchula, Florida 33873

For Respondent: Philip S. Bennett, Esquire Department Department of Transportation

Haydon Burns Building Tallahassee, Florida 32304

For Respondent: Eugene R. Buzard, Esquire Seaboard Law Department

Seaboard Coast Line Railroad

500 Water Street Jacksonville, Florida 32202

ISSUE

Whether a permit should be granted for a public at-grade crossing over Seaboard Coast Line Railroad tracts near its Milepost AX-892.

FINDINGS OF FACT

1. Mr. Mitchell Hope and Hardee County, Florida, by application to the Department of Transportation, sought to open a public railroad-highway grade

   crossing at a location where a proposed road would intersect the tracks and right of way of Seaboard Coast Line Railroad Company near its Milepost AX-892.

   
   

2. The property to be reached by the proposed at-grade crossing is owned by Applicant Hope and other private individuals. Other access to the property would be by crossing the Peace River to the south and east, or industrial property to the north, or by a grade separation over the railroad. The property consists of approximately 77 acres, of which 25 acres could be developed for residential purposes consisting of one-acre plots.

   
   

3. The nearest crossing to the south is a public crossing in Zolfo Springs, approximately one-half mile; the nearest crossing to the north is a private crossing, approximately one mile.

   
   

4. The scheduled train speed is thirty-five (35) miles per hour. Two freight trains each weekday and one each weekend day are scheduled to pass the proposed crossing.

   
   

5. Applicant Hope is willing to close the crossing to the public by means of a gate. The Board of County Commissioners of Hardee County is willing to accept the road and crossing into the County Road System provided the road meets engineering standards. Representatives of both Applicants are unwilling to provide or maintain automatic grade crossing traffic control devices.

   
   

6. The roadway approaches to the proposed crossing are as follows:

   
   

   1. From the west the sight distances between the roadway and the tracks are good provided the foliage and underbrush are kept cut near the ground.

      
      

   2. From the east the sight distance to the northeast quadrant is obstructed by trees and underbrush and complicated by the track curvature to the northeast; the sight distance to the southeast quadrant is somewhat less obscured but could be blocked by the growth

      of trees and underbrush.

      
      

7. The track approaches to the proposed crossing from the north are complicated by the curvature of the track which tends to prevent a view of the crossing until the train is within one-third of a mile from the crossing; the track view of the northeast quadrant is blocked by trees. The track approaches from the south are good.

   
   

8. The Department of Transportation has recommended the installation of automatic grade crossing traffic control devices consisting of flashing lights, bells and gates at such location if a crossing is found to be necessary.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 338.21, Florida Statutes, provides:

   
   

   "(3) The Department shall have regulatory authority over all public railroad crossings in the state, including the authority to issue

   a permit for the opening and closing of such crossings."

   
   

10. The Florida Department of Transportation must consider the necessity and the need for each public railroad crossing.

    
    

11. Section 334.02(7) provides:

    
    

    "It is the further intent of the Legislature to bestow upon local officials adequate authority with respect to the transportation facilities under their jurisdiction. . ."

    
    

12. Section 334.03(9) defines:

    
    

    "'Road' - The term road shall be construed to include streets, sidewalks, alleys, highways,

    and other ways open to travel by the public. . ."

    
    

13. Section 334.03(15) defines:

    
    

    "'State roads' - All streets, roads, highways and other public ways open to travel by the public generally and dedicated to the public use, according to law or by prescription and designated by the department as provided by law as parts of the state highway system. . ."

    
    

14. Section 335.01, Designation and classification of state roads, provides:

    
    

    "(1) All public roads open to travel by the public generally and dedicated to the public use, according to law or by prescription, and roads which are constructed out of public funds and dedicated for general public usage and all extensions thereof, and connections thereto are hereby designated and declared to be and are established as state roads."

    "(2) State roads shall be divided into four classes:

    1. The state highway system;

    2. The state park road system;

    3. The county road systems;

    4. The city street systems."

15. Section 336.01, Designation of county read system, provides: "The county road system shall consist of all

    public roads outside of municipalities, not

    included in the state highway system or state park road system, and such municipal connecting links and extensions as may be agreed upon by the boards of county commissioners and municipal authorities."

16. The County officials indicate a willingness to accept the road into the County Read System; and Respondent Department thus must issue a permit based on necessity and need for a public at-grade crossing.

    
    

17. It is the finding of the Hearing Officer that there is no present necessity to open a public grade crossing as requested inasmuch as the property has not been sold to individual home owners; the land has been subdivided into only three large plots; and the roadways have not been planned. In the event a public grade crossing is opened, traffic control devices consisting of automatic flashing light signals with bells and gates should be installed for reasons of safety for the motoring public, as well as the train crews.

RECOMMENDATION

Dismiss the application to open a public railroad-highway grade crossing at a location near Seaboard Coast Line Railroad Milepost AX-892, but retain jurisdiction for some future time when the facts may indicate the necessity for the crossing at which time the type of traffic control devices can be determined.

Hold each of the other proposed findings of fact and requests to be without merit.

DONE and ORDERED this 10th day of January, 1977 in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Brian J. Pappas, Esquire Attorney at Law

305 North Sixth Avenue Wauchula, Florida 33873

G. S. Burlesen, Sr.

Assistant State Utility Engr. (RRS) Haydon Burns Building

Tallahassee, Florida 32304

R. Earl Collins, Esquire Attorney, Hardee County Wauchula, Florida 33873

Eugene R. Buzard, Esquire Seaboard Coastline Railroad Co.

500 Water Street Jacksonville, Florida 32207

Docket for Case No: 76-001703

Orders for Case No: 76-001703