STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioners, )

)

vs. ) CASE NO. 79-2185

) CITY OF HAINES CITY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, Sharyn L. Smith, held a public hearing in this case on February 7, 1980, in Commission Meeting Room, City Hall, Haines City, Polk County, Florida. The parties were represented by counsel:

APPEARANCES

For Petitioner: Charles Gardner, Esquire Department of Department of Transportation Transportation Haydon Burns Building

Tallahassee, Florida 32301

For Petitioner: Ronae B. Keiser, Esquire

Seaboard Coast Seaboard Coast Line Railroad Company Line Railroad 500 Water Street

Company Jacksonville, Florida 32202

For Respondent: Robert C. Nettleton, Esquire City of Haines Post Office Box 277

City, Florida Haines City, Florida 33844

On March 26, 1979, the Department of Transportation (hereafter "Department") petitioned to close a public at-grade rail/highway crossing located at Seaboard Coast Line Railroad Company, Milepost A-830.30, commonly known as Charles or Currie Street. The Seaboard Coast Line Railroad Company (hereafter "Railroad") subsequently joined in the request for closure which was filed pursuant to Section 338.21, Florida Statutes, and Rule 14-46.03(2)(b), Florida Administrative Code.

Following the close of the hearing, the Hearing Officer viewed the site along with counsel for the parties. This viewing was done by automobile which approached the crossing from both sides and then traveled along the alternate route proposed by the Department and Railroad.

Proposed Recommended Orders have been submitted by the parties. Those findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.

FINDINGS OF FACT

1. In 1927, the City of Haines City and the Atlantic Coastline Railroad Company entered into a written agreement to construct a crossing at Charles Street, now known generally as Currie Street. The city expended public funds in the construction of the crossing. The construction agreement contained no termination date and the crossing has been open and in use since its construction in 1927.

   
   

2. The crossing is one of seven inside the city limits which are located along a two mile length of track. The track services four (4) passenger trains and ten (10) freight trains daily. While the train speed limit at the Charles Street crossing is seventy miles per hour for passenger trains and fifty miles per hour for freight trains, it is not possible for trains traveling at such speeds to stop quickly in the event of a blockage on the track. A passenger train would require approximately three quarters of a mile to stop while a freight train would require roughly one mile. Passenger trains primarily utilize the track during the day while freight trains utilize the track during an entire twenty-four hour period.

   
   

3. Safety is the main factor considered by the Department in determining whether to open or close a railroad crossing. The Charles Street crossing is somewhat dangerous because of its "Z" shaped design which requires cars approaching the crossing to travel parallel to the tracks, thus hindering visibility. Visibility on the west side of the crossing is restricted because of the presence of an overpass and bridge piers. While visibility is impaired to a degree by the piers, a driver approaching the crossing has an adequate line of sight in both directions. The approach to the crossing is extremely rough and traffic by necessity crosses Charles Street at very low speeds. The crossing is not heavily utilized by vehicular traffic. Additionally, traffic noise from the nearby overpass could blend with a whistle signal thus causing a safety problem. However, on the days when readings at the crossing were taken, the adjacent noise level did not drown out the train whistle. In the opinion of the Department's Railroad Committee, the occurrence of accidents at the crossing is not required before the Committee determines a particular crossing to be hazardous.

   
   

4. The Department also considers the need for emergency services and fire and police protection in determining whether to recommend closure. The proposed alternate crossing, McKay Street, is closer to the fire and police departments than Charles Street. However, because locomotives sometimes block the McKay Street crossing to service several industries located east of the crossing, 1/ emergency vehicles attempting to service certain residential areas would be required to travel an added distance of as much as two miles. Although the Railroad plans to install motion sensor devices, it does not appear that such devices would be satisfactory in a situation where a train was totally blocking a crossing. Although the railroad has a procedure for moving trains in emergency situations, it would be quicker to travel the approximate four minutes it could take to cover the added two miles rather than utilize the existing procedures. Moreover, response time is a factor in determining fire safety and is of added importance in this case because of the type of housing located in

   the area. Because of these factors, it appears that the closing of Charles Street could unduly inhibit the movement of emergency type vehicles.

   
   

5. The alternative McKay Street route proposed by the Department and Railroad is through an existing residential area. McKay Street was neither designed nor built to accommodate heavy truck traffic. Additionally, a city ordinance prohibits driving semi-trucks through a residential area. The businesses utilizing the Charles Street crossing include a carnival operator and an automobile garage. Both businesses require the use of heavy equipment and trucks. McKay Street is not a viable alternative route for these businesses because of the cities prohibition on use of McKay Street for truck traffic and the manner in which the street was constructed. If the ordinances were not amended, these property owners and possibly others could lose lawful access to their property and businesses.

   
   

6. The Department's Railroad Committee which recommends which rail/highway crossings should be closed, considers the existence of a feasible or viable alternate route to be critical to the recommendation regarding closure. If a viable alternate route does not exist, the committee would not recommend that a crossing be closed.

   
   

7. While the Charles Street crossing has a number of features which could increase the chances of an accident occurring at the crossing, no such accidents have occurred.

   
   

   CONCLUSIONS OF LAW

   
   

8. Rule 14-46.03(2)(b), Florida Administrative Code, which sets forth the criteria to be considered in deciding whether to close public rail/highway crossings provides in pertinent part:

   
   

   "(2)(b) Closing Public Grade Crossings-- Any Public Grade crossing not equipped with active grade crossing traffic control devices, with less than 1,000 vehicles per day and with an access road to an adjacent crossing is a candidate crossing for closing. A grade crossing should not be closed if by doing so would increase the traffic on adjacent crossing to capacity level or if such crossings are already at capacity. Also, that the closing of such crossing would not unduly inhibit movement of ambulances, police cars, fire fighting equipment and emergency type vehicles. Railroad tracks should be eliminated at a crossing when a single train movement has not been recorded in a 24-month period providing that where required, permission from Interstate Commerce Commission or the Florida Public Service Commission has been obtained."

   
   

9. The evidence presented in this case fails to establish that the closing of the Charles Street crossing would not unduly inhibit the movement of emergency type vehicles. While the installation of motion sensor devices would alleviate some of the problems which occur when trains pass through town or stop

   to service areas along the track, it would not be of assistance in an emergency situation if a train were blocking the McKay Street crossing.

   
   

10. Additionally, the Department requires the existence of a viable alternate route before recommending closure. An important aspect of this decision is whether the alternate crossing could be used by truck traffic presently using Charles Street. While truck traffic could physically maneuver the alternate route, such traffic is presently prohibited by city ordinance from utilizing such route. Consistent with the local ordinance, Haines City has constructed the alternate route for automobile and not truck traffic. Under these circumstances, it can not be said that the crossing suggested is a viable alternate route for the existing users of the crossing. While Haines City could amend its local ordinance and expend public monies to make the alternate route suitable for truck traffic, nothing in the law requires it to do so. Cf. Hillsborough Association of Retarded Citizens v. City of Temple Terrace, 332 So.2d 610 (Fla 1976).

    
    

11. When all of these factors are balanced against the potential safety hazards posed by the existing crossing, the decision to close the Charles Street crossing can not be sustained.

RECOMMENDATION

Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Petition of the Florida Department of Transportation and Seaboard Coast Line Railroad Company, Inc., to close the rail/highway crossing at Charles Street is DENIED.

DONE and ORDERED this 25th day of August, 1980, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ See Petitioner DOT's Exhibit II which indicates such blockage.

COPIES FURNISHED:

Charles Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee

Tallahassee, Florida 32301

Ronae B. Keiser, Esquire

Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida 32202

Robert C. Nettleton, Esquire Post Office Box 277

Haines City, Florida 33844

Docket for Case No: 79-002185

Orders for Case No: 79-002185