STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF DAVENPORT, Applicant )

)

Petitioner, )

)

vs. ) CASE NO. 77-433

)

FLORIDA DEPARTMENT OF ) TRANSPORTATION and SEABOARD COAST ) LINE RAILROAD, )

RE: Railroad Crossings - State ) Statute 338.21 Section 16000-6618 ) State Road (N. Blvd. - Holly ) Hills) Polk County, Parcel 1 (R/W ) XNG - H) Crossing No.: SCL ) 622964-V (Magnolia Street. )

Improvement) )

)

Respondents, )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled cause in the Conference Room, Department of Transportation District Office, Bartow, Florida, on April 28, 1977, at 1:00 o'clock P.M. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: James T. Joiner, Esquire

Post Office Box 761

Winter Haven, Florida 33880

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

Haydon Burns Building Tallahassee, Florida 32304

SEABOARD COAST

LINE RAILROAD: No appearance

ISSUE

Whether there should be a closing of a public-at-grade rail/highway crossing and removal of roadway in the vicinity of seaboard Coast Line Railroad Company's Crossing Number 622963-n and whether there should be improvements on Seaboard Coast Line Railroad Company Crossing Number 622964-v, Mile Post 825.15.

FINDINGS OF FACT

1. The Town of Davenport applied for a closing of a public-at-grade rail/highway crossing and roadway removal at the railroad crossing on North Boulevard in the Town of Davenport. Abandonment of the street was conditioned upon the improvement of Magnolia Street from Highway 17-92 on the east and running west to State Road 547. A public hearing was requested by the applicant. The following stipulation was entered into:

   
   

   "The Town of Davenport made application

   to close a crossing within the incorporated limits after the City officially closed a street in the Town of Davenport known as North Boulevard. The portion of the street that was officially closed by the City and abandoned includes a railroad crossing known as the Seaboard Coast Line railroad tracks. As a result of the closing other routes must he used by vehicles including the crossing on Magnolia Street in the Town of Davenport. Improvements have been made to the Magnolia Street crossing by the railroad. The Respondent, Florida Department of Transportation, agreed to assist in the installation of Type 3, Class 4, municipal design active signalization devices which consist of side mounted flashing lights, bells, and gates on the Magnolia Street crossing. The Town of Davenport agreed to furnish ten (10) percent of the monies necessary to install said signalization when the crossing comes within the program. The Town of Davenport has also agreed to share in a 50/50 basis the maintenance cost with the Seaboard Coast Line Railioad Company which would amount to approximately $400 a year. Consistent with this agreement the Respondent Florida Department of Transportation agrees that there is no need for the existing crossing and a permit for the closing is agreed to be granted for the closing on North Boulevard."

   
   

   CONCLUSIONS OF LAW

   
   

2. Section 338.21, Elimination of railway-highway crossing hazards.-, Florida Statutes, provides:

   
   

   "(1) The Department of Transportation, in cooperation with the several railroad companies operating in the state, shall determime and adept a program for the expenditure of moneys now available, and of the moneys to become available, for the construction cost of projects for the elimination of hazards of railway-highway crossings.

   1. Every railroad company maintaining a railway-highway crossing shall, upon reasonable demand and notice from the department, install, maintain, and operate at such crossing an automatic flashing light signal and ringing bell, the design of which shall be approved by the department, so that it will give to the users of such road reasonable warning of the approach of trains or cars on the tracks of said railroad company, the cost of such signals and the expense of installation to be paid from the moneys described in subsection (1).

   2. 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.

   3. The department is authorized to regulate the speed limits of railroad traffic on a municipal, county, regional, or statewide basis.

   4. Prior to the adoption of any rule or regulation opening or closing such crossings or of any rule or regulation fixing such speed limits, due notice shall be given and a public hearing shall be held by the secretary of the department or his duly authorized hearing officer, pursuant to the provisions of chapter 120, the Administrative Procedure Act.

   5. Review of such rules and regulations shall be by writ of certiorari as provided in chapter 120, the Administrative Procedure Act. Jurisdiction to enforce rules and regulations so adopted shall be as provided in s. 316.016, and any penalty for violation of a rule and regulation so adopted shall be imposed upon the railroad company. Nothing

      herein shall prevent a city, county, or other public authority from passing an ordinance relating to the blocking of a crossing as provided in chapter 351."

      
      

3. Need for the closing has been established and the safety devices recommended by the Florida Department of Transportation and agreed to by the Town of Davenport, applicant, has been agreed to.

RECOMMENDATION

Grant permit for closing.

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

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32394

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1977.

COPIES FURNISHED:

James T. Joiner, Esquire Post Office Box 761

Winter Haven, Florida 33880

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

Eugene Buzard, Esquire Seaboard Coast Line Railroad

500 Water Street Jacksonville, Florida 32202

Docket for Case No: 77-000433

Orders for Case No: 77-000433