STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA EAST COAST RAILWAY )

COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1530

)

CITY OF MIAMI, )

)

Respondent. )

and )

) DEPARTMENT OF TRANSPORTATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on October 21, 1981, in Miami, Florida. The parties requested and were accorded 60 days after the filing of the transcript to submit proposed findings of fact and conclusions of law. The transcript was filed on November 19, 1981. Subsequently, a further extension of the time for filing proposed findings and conclusions was requested so as to be due on February 15, 1982. Upon the timely submission of these pleadings the record was closed. All proposed findings have been considered. Where not adopted, they were found to be irrelevant or contrary to the weight of the evidence. By stipulation, the time constraint for issuance of this Recommended Order, as set forth in Section 28-5.402, Florida Administrative Code, was waived.

APPEARANCES

For Petitioner: Charles B. Evans, Esquire

One Malaga Street

St. Augustine, Florida 32084

For Respondent: Terry V. Percy, Esquire

174 East Flagler Street Miami, Florida 33131

For Intervenor: Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

This matter was referred to the Division of Administrative Hearings upon the application of the Petitioner to close the at-grade railroad crossing at

1. 13th Street within the city limits of Miami, Florida. Initially, the application was opposed by the Department of Transportation, but at the hearing DOT requested that its status as a party be changed from a Respondent to

   Intervenor. This request was granted. The application remains opposed by the City of Miami.

   
   

   The Petitioner presented three witnesses in support of the application, including its General Superintendent in charge of train operations from North Miami to Florida City, the Assistant Signal Supervisor in charge of installation and maintenance of signal crossing devices, and a consulting traffic engineer; and four exhibits which were received in evidence. The City presented five witnesses in opposition to the application, and one exhibit which was received in evidence. One witness testified on behalf of the Department of Transportation, as Intervenor in support of the railroad's application, and three exhibits were offered by DOT and received in evidence.

   
   

   Based upon the entire record in these proceedings, including the testimony and the exhibits, and the observed candor and demeanor of the witnesses, there is substantial, competent evidence to support the following factual findings.

   
   

   FINDINGS OF FACT

   
   

   1. The railroad crossing which is the subject of this proceeding is crossing number 272642-N, in the City of Miami, Florida. Its location at N.W. 13th Street is approximately 430 feet south of an existing crossing located at

      N.W. 14th Street, and roughly 850 feet north of another crossing located at N.W. 11th Street. The Railway's rationale for seeking to close the N.W. 13th Street crossing is that these other two nearby crossings offer practical alternate routes to the N.W. 13th Street crossing, and can provide adequate access to the area for the public and emergency services. The City's opposition is based on its contention that closure of the N.W. 13th Street crossing would adversely affect emergency access to the area, and would restrict access to the adjacent area where the City has at least two redevelopment plans pending which contemplate the building of approximately 10,000 new residential housing units. The Department of Transportation supports the closing of the subject crossing, contending that the existing crossings at N.W. 14th Street and N.W. 11th Street can carry the traffic that would be diverted from N.W. 13th Street, and that closing the N.W. 13th Street crossing would eliminate a hazard to the public at that point.

      
      

   2. The section of the Florida East Coast Railway involved in this proceeding runs from N.E. 79th Street to Biscayne Boulevard, a distance of approximately five miles. There are approximately 30 crossings now in existence over this section of the railroad's track. The principal justification for the closure of the N.W. 13th Street crossing is its proximity to the two crossings located at N.W. 11th Street and at N.W. 14th Street, and the resulting improvement in safety for vehicular traffic and railroad equipment. There is an overpass with large pillars directly above the subject crossing, and a curve in the railroad track at this location which tend to restrict the view of train crews as the crossing is approached. Closure will also eliminate upkeep and maintenance expenses caused by frequent vandalism at the N.W. 13th Street crossing location, and eliminate one sounding of the train whistle between N.W. 14th Street and N.W. 11th Street.

      
      

   3. The present signal device at the N.W. 13th Street crossing is between

      20 and 25 years old, and should require replacement within the next two years at an estimated cost of $41,570, unless the application is granted and the crossing closed. In addition, this signal device has been the subject of vandalism on four different occasions during the months of August, September and October, 1981, which necessitated repairs at the crossing site. The frequency of

      vandalism at the N.W. 13th Street location exceeds that at most of the other crossings in the Miami area.

      
      

   4. Northwest 13th Street is not a through street, but is a localized road which is blocked by the embankment for I-95. It is one-way westbound from the general vicinity of Biscayne Boulevard and 2nd Avenue to just beyond the subject crossing where it becomes two-way past the I-95 embankment. Both N.W. 14th Street and N.W. 11th Street are arterial roads which pass beneath I-95 and are not blocked by the embankment. They are the alternate roads in the area with adequate capacity to carry the traffic diverted from N.W. 13th Street if this crossing were closed. The movement of fire, police and other emergency vehicles would not be impeded by closing of the N.W. 13th Street crossing, since the crossings at N.W. 14th Street and N.W. 11th Street are readily available and offer better access to the area than N.W. 13th Street. Police or fire vehicles moving eastward over the N.W. 13th Street crossing must travel over a circuitous route because N.W. 13th Street is not a two-way street east of the crossing. In addition, closure of the subject crossing would remove an existing conflict point (a point where the path of any vehicle is interrupted by another vehicle), which is beneficial from a safety standpoint. Finally, any population growth in the area will have adequate transportation over N.W. 14th Street and N.W. 11th Street and will not require the use of the N.W. 13th Street crossing. Consequently, there will not be any significant impact upon traffic over the crossings at N.W. 14th Street and N.W. 11th Street by closure of the N.W. 13th Street crossing.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

      
      

   6. The authority of the Florida Department of Transportation is derived from Section 338.21, Florida Statutes, and Section 14-46.03(2)(b), Florida Administrative Code, which states:

      
      

      "(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 crossings would not unduly inhibit movement of ambulances, police cars, fire

      fighting equipment and emergency type vehicles...".

      
      

   7. In its proposed conclusions of law the City has conceded that the subject crossing meets the tests for candidacy for closure. Beyond this, the Petitioner has presented substantial, competent evidence to demonstrate that the subject railroad crossing meets the criteria established in Section 14- 46.03(2)(b), Florida Administrative Code, relative to available alternate routes permitting access to affected areas, adjacent crossings able to handle diverted traffic, and to show that the closure of the subject crossing would not unduly

inhibit the movement of emergency service vehicles. Consequently, the closure of the subject crossing is proper.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Florida East Coast Railway Company to

close the at-grade railroad crossing at N.W. 13th Street in Miami, Florida, be

granted.

THIS RECOMMENDED ORDER entered on this the 17th day of March, 1982, in Tallahassee, Florida.

COPIES FURNISHED:

Charles B. Evans, Esquire One Malaga Street

St. Augustine, Florida 32084

Terry V. Percy, Esquire

174 East Flagler Street Miami, Florida 33131

Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

WILLIAM B. THOMAS

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 17th day of March, 1982.

Docket for Case No: 81-001530

Orders for Case No: 81-001530