STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PASCO COUNTY COMMISSIONER )

DISTRICT NUMBER 4, )

)

Applicant, )

)

and ) DOCKET NO. 76-2146

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION and )

SEABOARD COAST LINE )

RAILROAD, )

)

Respondents. )

)

IN RE: )

Railroad Crossing - State )

Statute 338.21, Section )

14000-6605, State Road )

(Berry Hill Road), Pasco ) County, Parcel 1 (R/W XSO-h) ) RR Mile Post: SYA 877 is 1610' ) South. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration, on April 1, 1977, commencing at 10:40 A.M. in the Forest Hills Building, 4113 Oak Circle, Holiday, Florida.

APPEARANCES

H. James Parker, Esquire Jeffrey H. Savlov, Esquire Delzer, Edwards, Martin, Haydon Burns Building

Coulter & Parker 605 Suwannee Street

Post Office Box 279 Tallahassee, FL 32304 Port Richey, Florida 33568 ATTORNEY FOR D.O.T. ATTORNEY FOR APPLICANT

David Blair, Roadmaster

Seaboard Coast Line Railroad Company

ISSUE

Whether there should be an opening of a public at-grade rail/highway crossing by new roadway construction at the intersection of Berryhill Road and Seaboard Coast Line Railroad SYA 877-1610' South, Pasco County, Florida.

FINDINGS OF FACT

1. An application for an opening of a public at-grade rail/ highway crossing by new roadway construction was submitted by Robert K. Reese of Pasco County, County Commission District IV, Florida. The crossing location is in the municipality of Holiday. The local popular name of the street or roadway is Berryhill Roadway. The crossing is across the tracks of the Seaboard Coast Line railroad. The railroad mile post distance and direction is SYA 877-1610' south.

   
   

2. The crossing would serve a subdivision known as Forest Hills East. The only entrance into the Forest Hills East Subdivision is a crossing by way of Elizabeth Avenue. This crossing is unsignalized and requires vehicular traffic to cross two spur line railroad tracks. There is a third possible entrance into the subdivision through a crossing known as Tumbleweeds but this entrance is undeveloped and is not now being utilized. The Forest Hills East Subdivision projects 250 single family dwellings in the development. There are no current plans to build condominium or apartment structures.

   
   

3. Seaboard Coast Line Railroad previously approved water and sewer crossings underneath the railroad tracks at the Berryhill proposed crossing. There are deceleration and acceleration lanes and paving on the state road S-595 which leads up to the subdivision.

   
   

4. There is an estimated three trains per week which would utilize the crossing and there is an unobstructed field of view from the center of the railroad track 1500 feet to the south and 700 feet to the north. On the proposed crossing proceeding in the western direction there is am available visibility of 89 feet south and 120 feet north with a train proceeding at 15 miles per hour.

   
   

5. After public hearing in 1974 involving this same proposed crossing in which Dreher Construction Company, the developer of the subdivision, was the applicant, the Respondent, Department of Transportation, directed an issuance of the permit finding need but the issuance of the permit was conditioned upon the installation and maintenance of automatically operated signals consisting of flashing lights and ringing bells at the proposed crossing as the required safety measure. No permit was granted.

   
   

6. The roadway has been built and access to the subdivision across the tracks is now complete except for signalization. Because of no signalization the entrance is now blocked for ingress or egress although at least two new homes have been constructed in the subdivision.

   
   

7. The cost of the installation of the signalization which had been recommended by the Respondent, Department of Transportation, in 1974 and is still recommended, is between $30,000 and $40,000 with additional maintenance costs. The cost of the signalization of wooden cross bucks, stop signs and speed bumps with minimal maintenance costs is obviously much less although no evidence was submitted as to actual cost.

   
   

8. The present applicant for the Berryhill crossing, the Pasco County Commission, District IV, represented by its Transportation-chairman Robert K. Reese requests that the permit for the proposed Berryhill crossing be granted without the requirement that electronic signalization be required. A need was cited for an additional crossing to serve the residents of the subdivision in addition to normal travel. Additional needs were cited by the fire department and hospital emergency vehicles. It was noted that many of the residents are

   retirees and that at times the one existing crossing is blocked by trains across the track.

   
   

9. The applicant states that it is unwilling to expend county monies for the recommended electronic signalization.

   
   

10. The developer of the subdivision is unwilling to install and maintain the electronic signalization.

    
    

11. A large number of the residents of the subdivision want the proposed crossing opened immediately and at the hearing indicated that they felt that the roadside flashing lights were unnecessary and that they thought the cross buck and stop signs were all that is necessary.

    
    

12. From a personal viewing of the Forest Hills East Subdivision and the crossing available to the residents therein, together with the evidence submitted, the testimony of parties who have substantial interest in the proposed crossing and after listening to the oral arguments of counsels at the hearing and the briefs submitted thereafter, the Hearing Officer further finds:

    
    

    1. There is an undisputed need for a crossing in addition to the present crossing to serve the subdivision.

       
       

    2. The present crossing is less safe than the proposed railroad crossing would be although both crossings are needed to serve the subdivision. The normal number of trains trafficking at the proposed Berryhill crossing is three times a week with a maximum scheduled speed of the train at 20 miles per hour. The crossing is needed and signalization of wooden cross arms and stop signs and speed zones would serve the public interest adequately although manual flagging of the train and the installation of flashing lights and ringing bells might be required at a future time.

       
       

    3. The need to the subdivision and the residents therein would be better served by opening the proposed Berryhill crossing inasmuch as it would give two entrances into the subdivision.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 338.21(3), Florida Statutes, provides:

"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 a crossing.

The need has been established inasmuch as the crossing will serve an active subdivision. The flashing lights and ringing bells recommended by the Respondent, Department of Transportation, through the district safety engineer may be necessary at a future time when the traffic across the railroad from the subdivision increases or if the trains which presently run but three times a week with a maximum scheduled speed of 20 miles per hour increases in frequency and speed but at present the crossing does not require such a sophisticated signalization.

RECOMMENDATION

Grant the permit for a period of one (1) year with wooden cross arms, a stop sign and traffic bumps as signalization and safety measures. Reevaluate after one year from date hereof.

DONE and ORDERED this 23rd day of September, 1977, in Tallahassee, Florida.

COPIES FURNISHED:

H. James Parker, Esquire Delzer, Edwards, Martin,

Coulter & Parker Post Office Box 279

Port Richey, Florida 33568

Jeffrey H. Savlov, Esquire Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

Eugene R. Buzard, Esquire Seaboard Coast Lime Railroad

500 Water Street Jacksonville, Florida 32202

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PASCO COUNTY COMMISSIONER DISTRICT NUMBER 4,

Applicant,

and

FLORIDA DEPARTMENT OF TRANSPORTATION and SEABOARD COAST LINE RAILROAD,

Respondents.

DOCKET NO. 76-2146

IN RE: Railroad Crossing-State Statute 338.21, Section

14000-6605, State Road

(Berry Hill Road), Pasco County, Parcel 1 (R/W XSO-h) RR Mile Post: SYA 877 is 1610' South.

/

ORDER

The record and evidence in this case having been fully and completely reviewed along with the Recommended Order of the Hearing Officer herein dated September 23, 1977, it is found that the Hearing Officer erred as to her conclusions of law-in the following particulars:

1. That a permit for the above mentioned crossing should be granted for one year without the installation and maintenance of train activated signalization consisting of flashing lights and ringing bells.

FINDINGS OF FACT

1. An application for an opening of a public at grade rail/highway crossing by new roadway construction was submitted by Robert K. Reese of Pasco County, County Commission District IV, Florida. The crossing location is in the municipality of Holiday. The local popular name of the street or roadway is Berryhill Roadway. The crossing is across the tracks of the Seaboard Coast Line Railroad. The railroad mile post distance and direction is SYA 877-1610' south.

   
   

2. The crossing would serve a subdivision known as Forest Hills East. The only entrance into the Forest Hills East Subdivsion is a crossing by way of Elizabeth Avenue. This crossing is unsignalized and requires vehicular traffic to cross two spur line railroad tracks. There is a third possible entrance into the subdivision through a crossing known as Tumbleweeds but this, entrance is undeveloped and is not now being utilized. The Forest Hills East Subdivision projects 250 single family dwellings the development. There are no current plans to build condominium or apartment structures.

   
   

3. Seaboard Coast Line Railroad previously approved water and sewer crossings underneath the railroad tracks at the Berryhill proposed crossing. There are deceleration and acceleration lanes and paving on the state road S-595 which leads up to the subdivision.

   
   

4. There is an estimated three trains per week which would utilize the crossing and there is an unobstructed field of view from the center of the railroad track 1500 feet to the south and 700 feet to the north. On the proposed crossing proceeding in the western direction there is an available visibility of 89 feet south and 120 feet north with a train proceeding at 15 miles per hour.

   
   

5. After a public hearing in 1974 involving this same proposed crossing in which Dreher Construction Company, the developer of the subdivision, was the applicant, the Respondent, Department of Transportation, directed an issuance of the permit finding need but the issuance of the, permit was conditioned upon the installation and maintenance of automatically operated signals consisting of flashing lights and ringing bells at the proposed crossing as the required safety measure. No permit was granted.

   The roadway has been built and access to the subdivision across the tracks is now complete except for signalization. Because of no signalization the entrance is now blocked for ingress or egress although at least two new homes have been constructed in the subdivision.

   
   

6. The cost of the installation of the signalization which had been recommended by the Respondent, Department of Transportation, in 1974 and is still recommended, is between $30,000 and $40,000 with additional maintenance costs. The cost of the signalization of wooden cross bucks, stop signs and speed bumps with minimal maintenance costs is obviously much less although no evidence was submitted as to actual cost.

   
   

7. The present applicant for the Berryhill crossing, the Pasco County Commission, District IV, represented by its Transportation-chairman Robert K. Reese requests that the permit for the proposed Berryhill crossing be granted without the requirement that electronic signalization be required. A need was cited for an additional crossing to serve the residents of the subdivision in addition to normal travel. Additional needs were cited by the fire department and hospital emergency vehicles. It was noted that many of the residents are retirees and that at times the one existing crossing is blocked by trains across the track.

   
   

   The applicant states that it is unwilling to expend county monies for the recommended electronic signalization.

   
   

   The developer of the subdivision is unwilling to install and maintain the electronic signalization.

   
   

   A large number of the residents of the subdivision want the proposed crossing opened immediately and at the hearing indicated that they felt that the roadside flashing lights were unnecessary and that they thought the cross buck and stop signs were all that is necessary.

   
   

8. The Hearing Officer personally viewed the Forest Hills subdivision and the crossing available to the residents therein.

CONCLUSIONS OF LAW

Section 338.21(3) FS provides:

"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 a crossing."

It is undisputed that the need has been shown for an additional crossing in order to serve the subdivision.

Pursuant to the above mentioned 338.21 FS the Department of Transportation has promulgated certain rules, specifically Rule 14-46.03 F.A.C. Section 14- 46.03(3)(b) requires that

"all new public grade crossings shall have, as a minimum, roadside flashing lights and bells on all roadway approaches to the

crossing, normally placed to the right of approaching traffic."

The testimony clearly shows that this is to be a new public at grade crossing and therefore, roadside flashing lights and bells are required unless excepted under the aforementioned rule.

Any exceptions to the above mentioned general rule are to be found in Rule 14-46.03(3)(g). None of these exceptions are relevant insofar as:

1. No approval, based on engineering judgment, has been granted by the Department [14-46.03(3)(g)(1)]

   
   

2. This is not an industrial spur track nor has the railroad company specified that manual flagging will be accomplished nor has the Department determined that the characteristic of highway traffic are conducive to such flagging (Rule 14-46.03(3)(9)(2).

   
   

3. The remaining exceptions do not apply here.

Paragraph 8 of the Findings of Fact in the Hearing Officer's Recommended Order of September 23, 1977 has been modified to remove all statements except those in said paragraph 8, subsequent to the word "therein" since said statements are findings of law and are inapposite as proposed findings of fact.

THEREFORE, the minimum active grade crossing traffic control devices must be installed prior to the opening of this crossing. Insofar as no entity has come forward to erect and maintain said devices, the permit must be denied.

DONE and ORDERED this 11th day of October, 1977.

TOM B. WEBB, JR.

Secretary

State of Florida

Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

COPIES FURNISHED:

H. James Parker, Esquire Delzer, Edwards, Martin, Coulter & Parker

Post Office Box 279

Port Richey, Florida 33568

Eugene R. Buzard, Esquire Seaboard Coast Line Railroad

500 Water Street Jacksonville, Florida 32202

John J. Rimes, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Honorable Delphene Strickland Hearing Officer

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

Docket for Case No: 76-002146

Orders for Case No: 76-002146