STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TITUSVILLE and ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1646

)

FLORIDA EAST COAST RAILWAY )

COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on November 13 and 14, 1980, in Titusville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon an application by the City of Titusville, Florida (City), to open a public at grade railroad crossing on Buffalo Road over the main track of the Florida East Coast Railway Company (FEC) between Mile Posts 154 and 153. See Appendix 1, vicinity reference #5, top of page.

APPEARANCES

For Petitioners: Dwight W. Severs, Esquire City of 509 Palm Avenue

Titusville Post Office Box 669 Titusville, Florida 32780

Department of Charles G. Gardner, Esquire Transportation Department of Transportation

Haydon Burns Building Tallahassee, Florida 32301

For Respondent: John W. Humes, Jr., Esquire

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084 FINDINGS OF FACT

The FEC opposed the opening of this crossing as unnecessary and dangerous to rail and vehicular traffic. Public hearing on the application was requested by the City, and the matter was referred by the Department of Transportation (Department) to the Division of Administrative Hearings (Division) to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes, being received by the Division on September 10, 1980.

A prehearing conference was noticed in this case on October 3, 1980, for October 22, 1980. The parties were advised that the tentative date for the

final hearing would be October 29, 1980, which prompted the FEC to move for a continuance of the final hearing before it was actually noticed. This motion was denied by order dated October 10, 1980, which directed the parties to establish a mutually agreeable date for final hearing prior to the prehearing conference on October 22, 1980.

At the prehearing conference the parties filed their prehearing stipulation, which reflected that the Department and the City were Petitioners, both being advocates of the proposed crossing. The FEC was the sole Respondent. The style of the case was appropriately amended. The parties exchanged witness lists and set forth the documentary exhibits which they intended to introduce.

The prehearing stipulation contained a statement of the issues and the following agreement:

1. Copies could be utilized in lieu of original documents;

2. Discovery could be left open until five days prior to the hearing;

3. Additional witnesses and documentary exhibits could be added to the pretrial stip- ulation, provided the same were furnished to opposing counsel at least five days prior to the hearing;

4. The photographer would be unnecessary to identify photographs; and

5. The custodian of documents would be unnecessary to establish authenticity of documents.

The issues to be decided were necessity, convenience, and safety of rail and vehicular traffic in opening the proposed crossing. In addition, the FEC opposed the preliminary engineering plan of the proposed crossing with regard to the materials proposed to be used for the roadway over the track. This was determined to be an inappropriate issue for the formal hearing, and the issues were limited to those stated in Rule 14-46.03, Florida Administrative Code. All of the exhibits were assigned letters for identification purposes. The final hearing dates of November 13 and 14, 1980, were agreed upon by the parties. At the close of the prehearing conference the parties raised the issue of who had the burden to go forward and the burden of proof in this case. The parties were permitted to brief these issues. The City was determined to have the burden of proof, and the order of presentation of evidence and of cross-examination was set forth in the order entered November 4, 1980.

The formal hearing was conducted as scheduled on November 13 and 14, 1980.

At the close of the hearing the parties requested that submission of their proposed findings of fact and conclusions of law be extended until February 11, 1981, and agreed that the recommended order would be due 30 days after they had submitted their proposed findings. Subsequently, the parties mutually requested that the date for submission of their proposed findings of fact and conclusions of law be extended by seven days. The proposed findings of the FEC and the City were received on February i6 and 17, 1981, respectively. The Department did not file proposed findings of fact and conclusions of law.

The City's application proposed opening an at-grade railroad crossing over the FEC's mainline track connecting Buffalo Road with Marina Road within the City's corporate limits. The City presented evidence at the hearing regarding the plans to expand the recreational facilities in the area served by Marina Road, the traffic problems encountered by ambulances entering and exiting the

area, the problems of fire trucks responding to industrial fires in this area, and the beneficial effect to a boat building concern whose facilities are split by the tracks. The FEC presented evidence on the number of trains, their speeds, traffic studies, curves in the track near the point of the proposed crossing, and the layout of the proposed crossing as it would affect train and vehicular safety. The Department presented one witness, who testified to the matters considered by the Department's committee in its preliminary recommendation that the crossing be opened. The parties agreed to a view of the proposed site, which was conducted during a luncheon recess.

In summary the positions of the parties on the issues as presented in their proposed findings and arguments are as follows:

The City: Opening the crossing will facilitate access to the major recreational facility it is developing on the Indian River east and south of the proposed crossing. Without the proposed crossing this recreational area would have only one point of access. In addition, the opening of the crossing will permit fire trucks and other emergency vehicles to approach this industrial and recreational area from two directions, which is highly desirable. Opening the crossing will reduce traffic congestion at Marina Road and US Highway 1 and enhance traffic safety.

The FEC: The traffic which would use the proposed crossing now uses US Highway 1, which crosses the FEC on a grade-separated crossing, the safest type of railroad crossing. Opening the crossing would create an additional train/vehicle conflict point. Traffic volumes do not warrant another access to the area because the existing access at the intersection of US Highway 1 and Marina Road is not at capacity, and relocation of this intersection to the south as proposed in the city's long-range plans will eliminate existing safety problems at the intersection and permit the intersection to handle the existing and projected traffic volumes. The problems that fire and other emergency vehicles experience can be reduced, if not eliminated, by measures other than opening the crossing. The benefits to the industry located in the area are problematical, because it is uncertain whether the large boats and their transports could negotiate this crossing. The layout of the crossing and its location on the tracks increase the dangers to rail and vehicular traffic at the crossing to an unacceptable level.

The Department: While the Department did not file proposed findings, the Department's stated position was neutral regarding the ultimate decision, although it initially approved the City's application.

The proposed findings of fact submitted by the parties were considered. In many instances the proposed findings have been adopted but reworded and reorganized. Those proposed findings inconsistent with the findings below are specifically rejected.

ISSUES

The standards for opening an at-grade railroad crossing are set forth in Rule 14-46.03(2), Florida Administrative Code, which provides:

(a) Opening Public Grade Crossings - The foremost criteria in the opening of grade crossings is the necessity, convenience and

safety of rail and vehicle traffic.

Existing routes should be utilized where practical. Damage to the railroad company's operation and railroad safety consideration must be a factor in permitting a new grade crossing. ...

The issues set out above and agreed to by the parties are:

1. Necessity;

2. Convenience (to the public);

3. Safety to railroad and vehicular traffic; and

4. Whether existing routes should be utilized.

FINDINGS OF FACT

Necessity

1. The City's application for the proposed public rail crossing within the city limits would connect Buffalo Road with Marina Road over the FEC's mainline track from Jacksonville to Miami, Florida. Buffalo and Marina Roads meet at right angles at the railroad track, with Marina Road running north and south parallel to and east of the railroad track and Buffalo Road running east and west to the west of the railroad track. The proposed crossing would tie the ends of these two streets together making a loop to and from US Highway 1, a major arterial route running north and south. Buffalo and Marina Roads provide access to all property, businesses and activities located along them within this area. These primary activities include two public recreational parks, a public marina, a restaurant, and a boat building works located in that order northward along Marina Road; and the primary activities on Buffalo Road are the City's sewage treatment plant and another portion of the boat building works, both of which are located at the east end of Buffalo Road. The proposed crossing is not required to obtain access to any location along these roads which would otherwise be landlocked. It is only approximately 1.7 miles from one side of the railroad track to the other side by the existing route; however, few members of the general public would make such a trip because of the activities located by the railroad tracks. Most of the projected traffic over the proposed crossing would be through traffic exiting or entering the Marina Road recreational area. This traffic would travel to US Highway 1 via Marina Road and Buffalo Road. The distance from the existing exit at Marina Road and US Highway 1 to the Buffalo Road and US Highway 1 intersection over the proposed route is 0.9 of a mile, almost the exact distance of the existing route. While the crossing would have great utility to the boat works, it is not necessary to the company's operations. Similarly, the proposed crossing would create another route to the recreational area for ambulances from the hospital located several blocks north of the Buffalo Road/US Highway 1 intersection. This route via the proposed crossing would not shorten the trip appreciably and certainly is not necessary. It would be operationally better for the fire department to have two accesses into the industrial area located at the ends of Buffalo and Marina Roads; however, it is not necessary for the fire department to have two routes, as is demonstrated by their successful responses to fires at both portions of the boat works. In summary, the distances involved and the available access to activities and businesses along Buffalo and Marina Roads do not sustain a finding that the proposed crossing is necessary.

   Convenience

   
   

2. Many of the facts above, while not establishing a necessity for the proposed crossing, do establish that the crossing would be convenient. Two accesses into the activities located along both roads would be convenient to regular traffic and ambulances. It would be operationally desirable for the fire department to be able to approach a fire along these two roads from two directions. The proposed crossing would provide almost direct access between the two portions of the boat works now separated by the track. The development of the expanded recreational facilities along Marina Road will increase traffic volume, and at the periods of highest use, for example during softball tournaments, there is already congestion of traffic exiting Marina Road onto US Highway 1. However, the existing Marina Roads US Highway 1 intersection has a level of service A, or no traffic congestion during normal peak use. Further, the intersection would have no less than a level of service C rating with traffic volumes projected after full development of the recreational facilities. Level of service C is the optimum level of service from a planning standpoint considering cost effectiveness. Level of service C would be maintained with projected traffic volumes in spite of the intersection's configuration and location on a banked curve on the incline of the US Highway 1 overpass over the FEC's tracks. This configuration is not the safest possible; however, plans exist to move the Marina Road/US Highway 1 intersection south several hundred feet. This will greatly improve the configuration of this intersection and eliminate the safety problems of the existing intersection. When budgeted and completed this will make this intersection much safer than it is currently.

   
   

3. As stated above in relationship to the issue of necessity, the majority of the traffic over the proposed crossing would be exiting or entering the Marina Road recreational complex. A comparison of the distances involved shows that traffic traveling from the Marina Road intersection to the Buffalo Road intersection over the existing route is only slightly inconvenienced.

   
   

   Safety

   
   

4. There are two primary safety considerations: Railroad traffic safety and vehicular traffic safety.

   
   

5. Railroad Safety: There is an average of 28 trains daily over the FEC's mainline track between Jacksonville and Miami, Florida, at the site of the proposed crossing. The proposed crossing is located on a curve between two curves. The characteristics of the curve north of the proposed crossing prevent a southbound train's crew from observing the actual crossing until the train is 1,200 feet from the crossing site. Due to vegetation along the roadways, the train crew must be almost at the crossing before they can see approaching vehicular traffic. The southbound trains travel at a speed of 48 miles per hour at the site of the proposed crossing and could not stop for an obstacle on the track from the point of initial observation. The characteristics of the curve south of the proposed crossing prevent the engineer of a northbound train from observing the crossing until very close to the crossing. Northbound trains travel at a speed of 35 miles per hour and would encounter great difficulty in stopping within the distance they would first observe an obstacle on the track. Vegetation and buildings restrict the northbound train crews observation of the vehicular approaches along Buffalo Road. This vegetation also restricts a driver's visibility of trains approaching from both the north and the south in three of four quadrants around the crossing. The restricted visibility makes train and vehicular traffic dependent upon warning signals and crossing protection devices. These devices suffer vandalism which can make them

   inoperable. The isolated location of the crossing would permit vandalism, as indicated by the damage to the dead end sign at the end of Buffalo Road observed during the view of the site. The FEC's data indicates that crossing warning devices do not eliminate crossing accidents. The FEC increased the number of protected crossings from 373 in 1976 to 510 in 1980, while the number of accidents at such crossings increased from 22 in 1976 to 42 in 1979. Such devices are not a substitute for good crossing layout and visibility. The dangers of this proposed crossing would place a continuing strain on train crews, and the only means of providing the margin of safety necessary is to slow the train's speed. This would adversely affect rail operations.

   
   

6. Vehicular Safety: The layout of the proposed crossing creates hazards to vehicular traffic. To negotiate the crossing, north and southbound traffic would have to make a sharp 90-degree turn. At the proposed crossing the two roads have different widths and different elevations, making vehicle control and observation over the crossing's crest difficult. In addition Buffalo Road shifts its alignment to the left just prior to the crossing site. A southbound vehicle traveling east on Buffalo Road toward the crossing would have to move left just prior to the point where the road would widen and then make a right turn over the crossing. Failure to move left will cause a vehicle to hit the right cantilever standard, and failure to make the right turn will cause the vehicle to leave the roadway. The lack of room east of the track requires northbound traffic to approach the crossing parallel to the track and then make a 90-degree turn to cross the track. Again, the crossing's crest poses an obstacle to visibility of approaching traffic. The approach speeds for north and southbound traffic are extremely high for the proposed curve. Even with lower posted speed limits the isolation and road conditions will permit speeding along both roads. All of these factors raise the possibility of loss of control, which may result in vehicles leaving the traveled way and plunging into low areas surrounding the roads. Vehicular traffic which fails to make the curve could even plunge into the railroad right-of-way. Problems with this sharp curve are compounded by the inability to bank the road's curve properly and still maintain clearance for rail traffic. There are multiple safety problems with the proposed crossing, which create extremely hazardous conditions for vehicular traffic without consideration of the fact that the driver must also be alert for trains. The dangers at the existing intersection of Marina Road and US Highway 1 are small compared to those of the proposed crossing. In summary, the proposed crossing will expose the public to substantially greater dangers than those of the existing route.

   
   

   Use of the Existing Crossing

   
   

7. There is an elevated, grade-separated crossing on US Highway 1 just south and slightly west of the proposed crossing. This provides class A service, the highest level of service possible, to vehicular traffic moving north and south on US Highway 1, or the same traffic which would use the proposed crossing. The US Highway 1 overpass, which is a four-lane major arterial road, will meet the projected traffic volumes until the year 2000. This existing crossing eliminates a railroad/vehicular traffic conflict point entirely. The US Highway 1 overpass provides the safest means of crossing the

   FEC's track for both rail and vehicular traffic at no appreciable inconvenience.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Department of Transportation has authority to open public railroad grade crossings. The City of Titusville requested and obtained preliminary approval of such a crossing. The Florida East Coast Railway Company, whose

   track would be crossed, opposed the opening of the crossing and requested a formal hearing on the City's application. The FEC would be substantially affected by the proposed agency action and is entitled to a formal hearing pursuant to Section 120.57(1), Florida Statutes. Because the City seeks to alter the status quo, it bears the burden of proof and the burden to go forward.

   
   

9. The provisions of Rule 14-46.03(2)(a), Florida Administrative Code, set forth the criteria for opening an at grade rail crossing. This rule provides as follows:

   
   

   1. Opening Public Grade Crossings - The foremost criteria in the opening of grade crossings is the necessity, convenience and

      safety of rail and vehicle traffic. Existing routes should be utilized where practical. Damage to the railroad company's operation and railroad safety consideration must be a factor in permitting a new grade crossing.

      
      

10. As discussed in the Findings of Fact, Buffalo Road and Marina Road, which would be connected by the proposed crossing, already provide access for vehicular traffic to all property and activities located along these streets. There is no necessity to open the proposed crossing to provide access to traffic. Necessity as it is used in this rule addresses those situations in which the reasonable use and enjoyment of property is dependent upon access over the proposed crossing. The facts in this case do not present a situation in which the opening of the proposed crossing is a necessity.

    
    

11. As mentioned in the Findings of Fact, those matters discussed in relationship to necessity directly relate to convenience. Clearly, the evidence indicates that opening the proposed crossing would be convenient to the public. The resulting additional route into and out of the Marina Road recreational area would be convenient to those motorists who desired to travel north from the Buffalo Road/US Highway 1 intersection and would reduce traffic at the Marina Road/US Highway 1 intersection, particularly during the periods of peak use such as softball tournaments. It would enhance the ability of the fire department to answer calls in this area. However, the level of service at the Marina Road/US Highway 1 intersection even with the increased traffic volumes arising from the development of the recreational area is category C or higher, or the optimum level of service for planning purposes. The distance traffic would travel to reach Buffalo Road over the proposed route indicates minimal added convenience to traffic over the use of the existing route. The slight added convenience of the proposed crossing must be weighed against the impact on safety to railroad and vehicular traffic.

    
    

12. The location of the Marina Road/US Highway 1 intersection is not ideal. It is located at the beginning of the incline of the existing US Highway

    1 overpass over the FEC tracks. US Highway 1 curves to the west at the present intersection and is banked toward the inside (westward side) of this curve. It is recognized by all the parties that this location is not as safe as it could be. Although opening the proposed crossing would permit northbound traffic to avoid the Marina Road/US Highway 1 intersection, it will not solve the essential problems of that intersection. It will only divert a portion of the traffic using the Marina Road intersection. However, the diverted traffic will be

    exposed to the more extreme dangers of the proposed crossing. The plans exist to move this intersection south to a point where it would be on level ground, which would eliminate the safety problems.

    
    

13. The proposed crossing is located between two curves on the FEC tracks, and these curves limit the ability of train crews on both north and southbound trains to observe the proposed crossing. Under conditions which will routinely exist the crews will not be able to stop trains in time from the point where they can first observe an obstacle on the crossing. Driver visibility is also restricted, making both vehicular and railroad traffic very dependent upon the crossing signals and protection devices. These devices are subject to vandalism, and the isolated nature of the crossing site makes vandalism highly likely, as the damage to the existing dead end sign on Buffalo Road indicated. While the train speed could be reduced, this would adversely impact rail operations.

    
    

14. Buffalo and Marina Roads meet at the railroad tracks at right angles, with Marina Road running north and south parallel to the railroad track and Buffalo Road running east and west. The lack of room east of the proposed crossing makes it impossible to shift Marina Road to avoid the sharp 90-degree curve into and onto the proposed crossing. Buffalo Road traffic approaching the crossing must first move left as the road changes alignment, then make a sharp 90-degree turn back to the right. The turn's problems are further compounded because the curve cannot be banked sufficiently for existing speeds and still provide sufficient clearance for railroad traffic. Even if the existing speed limit were reduced, the isolated nature of the two roads and road conditions would lead to speeds which will make negotiating this curve difficult and dangerous. A vehicle traveling in either direction which fails to negotiate the curve will leave the roadway and plunge into the lowlands on the outside of the curve or onto the railroad track. If guard rails are used, they will throw the vehicle back into the path of oncoming traffic, which will be unable to observe the impending problem because Marina Road is lower than Buffalo Road and the crossing's crest will block the view. Further, guard rails cannot be placed along the entire curve because of the space needed for the trains.

    
    

15. In summary, there is no necessity for the proposed crossing. The minimal convenience of the crossing must be weighed against the safety considerations. Although the existing Marina Road/US Highway 1 intersection is not as safe as it could be, opening the crossing will not solve that intersection's problems but merely divert a portion of the traffic volume into a more dangerous situation. The answer to the Marina Road intersection's safety problems is its movement further south. This is already in the planning stage. In the end, the matter rests on a comparison of the convenience to the public of opening the crossing against the dangers to the public and the railroad of opening the crossing. The proposed crossing has many factors which contribute to an extremely dangerous crossing. These multiple potential dangers far outweigh the marginal convenience to the public that opening this crossing would provide.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the agency head deny the application to open an at-grade crossing at Buffalo Road.

DONE and ORDERED this 11th day of March, 1981, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1981.

COPIES FURNISHED: Appendix I (map) Appendix II (exhibits)

Dwight W. Severs, Esquire

509 Palm Avenue Post Office Box 669

Titusville, Florida 32780

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

John W. Humes, Jr., Esquire Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

APPENDIX II LIST OF EXHIBITS

City of Titusville (Petitioner)

1. Traffic analysis report prepared by Kimley-Horn & Associates, Inc.

2. 1980 arterial street plan

3. Sand Point Park plan

4. Revision to Sand Point Park plan

5. Street map of the City of Titusville

6. Aerial photograph initialed by the parties

7. Ten photographs of proposed crossing and surrounding area initialed by the parties

8. Construction plans for crossing

9. Assessor's map

10. Traffic analysis prepared by Tipton & Associates, Inc.

11. Nineteen photographs initialed by the parties

    
    

    1. Composite 12 photographs of proposed crossing

    2. Zoning Map of City of Titusville

    3. Commercial Map of Greater Titusville with residences of players indicated

    4. Memorandum - Orr to Buschman regarding Accident Record, Marina Road/US Highway 1

    5. Kimley-Horn Traffic Study, Marina Road/US Highway 1 without crossing

    6. Kimley-Horn Traffic Study, Marina Road/US Highway 1 and Buffalo Road/US Highway 1 with crossing

Florida East Coast Railway Company (Respondent)

1. Memorandum - File from Fernandez regarding Buffalo Road Crossing

2. Manual of Uniform Standards, Department of Transportation

3. Extract from Titusville Ordinance

4. Data for number of at-grade crossings and types of devices

   
   

   Appendix II - Page 1

   
   

5. Number of Crossing Accidents by Type of Device

6. Damage to Crossing Devices

7. Not received

8. Not received

9. Profer - Affidavit of Fondren regarding materials in proposed crossing

Docket for Case No: 80-001646

Orders for Case No: 80-001646