STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SEBASTIAN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1757

)

FLORIDA EAST COAST RAILWAY ) COMPANY and FLORIDA DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., a Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on August 22, 1983, in Sebastian, Florida.

APPEARANCES

For Petitioner: Daniel L. Kilbride, Jr., Esquire 2065 15th Avenue

Vero Beach, Florida 32960

For Respondent Charles Gardner, Esquire Department: Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32304

For Respondent Charles B. Evans, Esquire and Railway: Carolyn O. Nofal, Esquire

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084 ISSUE

Whether Petitioner's application for the opening of a public at-grade railroad crossing at Stratton Avenue, in the vicinity of Mile Post 218 + 146', in the City of Sebastian, should be granted or denied by the Department of Transportation.

BACKGROUND

On December 1, 1982, Petitioner, City of Sebastian, ("Sebastian") filed its revised Railroad Grade Crossing Application with respondent Department of Transportation ("Department"). By letters of December 18, 1982 and May 5, 1983, to the Department, the Florida East Coast Railway Company ("Railway") opposed Sebastian's application.

On June 2, 1983, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57(1) hearing. Hearing was thereafter set for August 9, 1983, then reset for August 22, 1983.

At hearing, Sebastian presented the testimony of Lester L. Solin, Kenneth

R. Evitt, Pat Flood, Jr., Daniel Murray, John Adair and David Young. Sebastian's Exhibit Nos. 1 through 16 were received into evidence. The Department presented the testimony of David Young, and Department's Exhibit No.

1 was received into evidence. The Railway presented the testimony of William E. Tipton; and the Railway's Exhibits Nos. 1, Supplement to Exhibit No. 1, and Exhibit No. 2 were received into evidence. 1/

The parties also filed a prehearing stipulation which, as later modified, states their respective positions. Sebastian asserts that sound transportation planning requires the opening of the contested at-grade railroad crossing; that the crossing is needed to meet current and future transportation needs of the community; that the application should be granted because the crossing is necessary, convenient, and safe to rail and vehicle traffic; and that it meets the criteria for opening of grade crossings contained in Rule 14-46.03(2)(a), Florida Administrative Code. The Department supports Sebastian's position because its Railroad Committee has preliminarily determined that the application should be granted.

The Railway asserts that opening the contested crossing will substantially increase the likelihood of a safety hazard by increasing the number of possible conflicts between motor vehicles and trains; and that a crossing is unnecessary because the existing and anticipated traffic needs of the community can be met by alternative means without inconveniencing the public.

The transcript of the hearing was filed on September 8, 1983. Proposed findings of fact were filed by October 8, 1983.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT I.

THE PROPOSED AT-GRADE CROSSING

1. Sebastian has applied for a Department permit to open a public at-grade crossing of the Railway's right-of-way near Mile Post 218 + 146'. The proposed Stratton Avenue crossing of the railroad track is part of a planned eastward extension of Barber Street and Stratton Avenue. If completed, this extension will provide a new arterial road connecting the southeast interior section of Sebastian with U.S. Highway 1. (Stip.; P-2 (d); R-1)

   
   

2. The proposed Stratton Avenue crossing will have an 80 foot right-of-way and eventually accommodate four lanes. During the permitting process, its alignment has been modified to provide for greater vehicular sight distance. Although the proposed Stratton Avenue extension does not cross the tracks at right angles, which would provide maximum sighting of oncoming trains, it is likely that further improvements in alignment can be made. Nevertheless, the alignment, as proposed, complies with standard engineering criteria contained in

   the "Manual of Uniform Minimum Standards for Design, Construction, and Maintenance for Streets and Highways." (P-2 (d); Testimony of Adair)

   
   

3. The alignment of the proposed crossing would allow for a 45 mile-per- hour speed limit. Twenty-four trains currently pass this section of track each day. The train speed limit is 65 miles-per-hour. (R-2)

   
   

4. The proposed crossing will be provided with cross-bucks, gates, and flashers. The parties have stipulated that Sebastian will install, at its own expense, active grade crossing traffic control devices meeting the criteria of Rule 14-46.03(3), Florida Administrative Code. (Stipulation)

   
   

5. Applications to open public at-grade crossings are measured by three criteria: convenience, safety of rail and vehicle traffic, and necessity. Existing routes must first be utilized when practicable. Damage to a railway's operation and safety must be considered. And when estimated traffic approaches 30,000 vehicles a day on main line tracks, the applicant must perform a cost- benefit analysis to determine if grade separation is warranted. See, Section 14-46.03(2)(a), Fla. Admin. Code.

   
   

   II.

   
   

   CRITERION 1: CONVENIENCE

   
   

6. The proposed Stratton Avenue crossing would be convenient and provide several advantages to residents of Sebastian. (A map showing the location of the proposed crossing is attached for easy reference.)

   
   

   1. Improved Access to Hurricane Shelter. Sebastian Elementary School has recently been built at the intersection of Schumann Drive and south Barber Street. (Stratton Avenue will connect Barber Street with U.S. 1.) This school serves as a hurricane or civil defense fallout shelter for Sebastian and northern Indian River County. The proposed Stratton Avenue extension would provide an additional access route and facilitate evacuation of residents from

      U.S. 1 to the shelter. (TR-53-55)

      
      

   2. Improved Access to Sebastian Elementary School. The new school serves students located throughout the northern part of Indian River County. Currently, 42 school buses transport students to and from the school using Powerline Road (a dirt road unsatisfactory for bus traffic) and Schumann Drive (a road which traverses a residential neighborhood). A majority of these buses would use the proposed Stratton Avenue extension since it would be paved and would avoid built-up residential neighborhoods. The latter advantage may be short-lived, however, because Stratton Avenue will traverse a residential area which will eventually be developed. The Stratton Avenue extension would also benefit parents who bus their children to school because it would provide a new access road from U.S. 1. The School Board of Indian River County supports the Stratton Avenue extension and crossing because of the increased access provided to school buses and parents. (Testimony of Solin, Tipton, R-1, P-4)

      
      

   3. Improved Fire and Police Access to the Elementary School and South Sebastian. The proposed Stratton Avenue extension, with crossing, will enhance fire, police, and emergency service access to the elementary school and residential areas of south Sebastian. Currently, fire and police vehicles reach the south and southwestern portions of the city by proceeding south one and three quarters miles on Schumann Drive (which is one and three quarters miles north of Stratton Avenue), then south on Barber Avenue to the residential areas.

      The Stratton Avenue extension would provide a shorter and more direct route so emergency vehicles could respond more quickly. (Testimony of Solin)

      
      

   4. Improved Access to U.S. 1 from South Sebastian Residential Areas. Residents living in south and southwest Sebastian would have improved access to

      U.S. 1 and coastal areas if the extension, with crossing, is built. Residents traveling east on Barber Street would have a shorter and mode direct route to

      U.S. 1 and the coast.

      
      

7. Two county road improvements planned for completion during the next two years will, however, improve access to and from Sebastian Elementary School and

   U.S. 1. Powerline Road will be widened and paved; Schumann Drive will be extended to Wobaso Road, as shown on the attached map. 2/

   
   

   III. CRITERION 2: SAFETY

8. The design and alignment of the proposed crossing meets or exceeds all safety and engineering standards of the Department, and no party asserts otherwise. The design will allow clear, though not optimum, visibility by both vehicle and train traffic. (Testimony of Murray, Adair, Tipton; P-2 (d), R-1)

   
   

9. The proposed crossing will, however, provide a new point for potential collision between trains and motor vehicles, with resulting property damage, injury, and loss of life. Currently, 24 of the Railway's trains pass the crossing site each day, with a permissible speed of 65 miles-per-hour. The proposed crossing will increase the potential for collision between motor vehicles and trains. (Testimony of Tipton; P-16)

   
   

10. The frequency and seriousness of grade-crossing accidents are cause for concern. In 1978, there were 1,122 grade-crossing fatalities, nationwide. Between 1979 and 1983, there were 177 grade crossing accidents involving the Railway's trains; 18 people were killed and 66 injured. These accidents occurred despite the fact that the Railway's public crossings are equipped with gates, bells, and lights. (Testimony of Tipton)

    
    

11. It is generally recognized that, assuming equal volumes of vehicular traffic, the potential for accidents is directly related to the number of crossings. (Testimony of Tipton; R-1)

    
    

    IV.

    
    

    CRITERION 3: NECESSITY

    
    

12. Although completion of the proposed Stratton Avenue extension, with crossing, would benefit Sebastian residents, there is no genuine need or necessity for the extension. Existing roads and crossings, with minor improvements (many of which are already planned or underway) can safely and adequately accommodate existing vehicular traffic and traffic demands projected for the next five years. (Testimony of Tipton; R-1)

    
    

13. The Railway contracted for an in-depth traffic engineering study to determine whether the proposed at-grade crossing is needed for transportation purposes. That study, which is credible and accepted as persuasive, concludes that the existing roads and crossings serving the area north and south of

    Stratton Avenue can, with minor improvements, safely and adequately accommodate traffic demands reasonably projected for the next five years. (R-1)

    
    

14. In conducting the study, William E. Tipton, an expert traffic transportation engineer, collected and analyzed four kinds of data: 1) Population growth projected in the area of the proposed crossing within the next five years; 2) Traffic characteristics at intersections and crossings near the proposed crossing; 3) Daily traffic counts at those intersections; and 4) Roadway improvements planned for the near future. (R-1, Testimony of Tipton)

    
    

15. Existing traffic on the nearby intersections was counted and adjusted to derive peak season and peak hour conditions. Applying standard capacity measurements, the study indicates that, currently, 52 percent of the existing capacity of State Road 510 is used during peak conditions; 20 percent of the capacity of 87th Street is used; and 26 percent of Vickers Road. It is apparent that these roads currently have excess capacity and are underutilized. As Mr. Tipton stated: "I could have laid down in the road for a while while we were out there counting traffic, because the traffic was that low." (TR-119; Testimony of Tipton; R-1)

    
    

16. The impacts of traffic generated by additional residential development projects planned for completion during the next five years was then analyzed. Traffic from these particular developments, assumed to be 100 percent occupied, was then assigned to nearby roads and a critical movement analysis was performed for each intersection. Level of Service "D" is the design standard which is normally deemed acceptable for peak hour, peak season traffic conditions. With the following minor improvements, the nearby intersections can provide "D" service or better during the next five years, without construction of the Stratton Avenue extension and crossing: 1) installing a signal at the intersection of U. S. 1 and 510, which is already underway; 2) adding a right turn lane on the south leg of U.S. 1 at this same intersection; 3) installing a traffic signal at the intersection of U.S. 1 and Schumann Drive to allow a left turn-out; 4) adding a left turn lane on the south leg of State Road 5A at the intersection of 510 and 5A. (TR 122-123) The cost of the proposed Stratton Avenue extension will exceed, many times over, the cost of these relatively minor intersection improvements. (Testimony of Tipton; R-1)

    
    

17. Although the south Sebastian area was extensively platted for residential development during the 1960s, it remains sparsely populated today. It is projected fifty percent "build-out" will occur in 15 years, and full "build-out" in 30 years. At some point in the future the proposed Stratton Avenue extension will, undoubtedly, be needed but it is reasonably certain that it will not be needed for transportation purposes for at least five years. (Testimony of Tipton)

    
    

    V.

    
    

    NO DAMAGE TO RAILWAY OPERATIONS AND NO NEED FOR A GRADE SEPARATION

    COST-BENEFIT ANALYSIS

    
    

18. There is no evidence that the proposed extension and crossing will damage or interfere with operations of the Railway.

    
    

19. Should the Stratton Avenue extension and crossing be built, it is estimated that traffic use will ultimately approach 31,830 vehicles, but this will not occur within 20 years, the period considered to be a reasonable

    planning cycle for road improvements. No cost-benefit analysis was performed by Sebastian (to determine whether a grade separation is required) because the traffic projections did not approach 30,000 within a 20-year period. Further, there is no evidence that either the Department or the Railway ever requested that such an analysis be done. The parties' prehearing stipulation fails to indicate that the requirement of a cost-benefit analysis is at issue.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57, Fla. Stat. (1981).

    
    

21. Pursuant to Section 338.21, Florida Statutes, the Department set standards for the issuance of permits for the opening and closing of public at- grade railroad crossings. Section 14-46.03(2)(a) provides in pertinent part:

    
    

    (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. When estimated traffic approaches 30,000 vehicles a day on main line tracks, a benefit-cost analysis should be performed by the applicant to determine if a grade separation is warranted.

    
    

22. Generally, applicants must bear the burden of proving entitlement to the licenses they seek. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Hence, it is Sebastian's burden to show that the proposed Stratton Avenue crossing is convenient, safe, and necessary, and that a permit should issue.

    
    

23. Sebastian has failed to sustain this burden. It has shown that the proposed crossing will be convenient and provide several benefits to residents of the area, and that it will meet minimum safety standards. But it has not shown that the crossing is needed--now or during the next five years. The nearby roads and crossings have excess capacity and are underutilized. With several minor improvements, they will be capable of safely and adequately satisfying the transportation needs of the area for the next five years.

    
    

24. The proposed crossing would provide one more point where motor vehicles and trains may collide, with resulting property damage, injury, and loss of life. At-grade crossings are an inherent safety risk since accidents have occurred and--in all likelihood--will continue to occur despite adequate designs and warning devices. The Department's rules, seemingly taking this into consideration, thus require--as a requisite to licensing--that the proposed crossing be necessary. When given full effect, these rules protect the public from needless exposure to risk of injury or death at railroad crossings. Within the next five years, a period within which reasonable traffic and population projections can be made, the proposed crossing has not been shown to be necessary within the meaning of Section 14-46.03(2)(a). Accordingly, without prejudice to Sebastian's right to reapply in the future should circumstances warrant it, the application must be denied.

25. The parties' proposed findings of fact have been considered in preparing this recommended order. To the extent their proposed findings were consistent with the weight of the credible evidence adduced at hearing, they have been adopted and are reflected in this recommended order. To the extent the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which are subordinate, cumulative, immaterial, or unnecessary, have been rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Sebastian's application for a permit to open the Stratton Avenue at- grade public railroad crossing be denied, without prejudice to its right to reapply in the future should circumstances warrant it.

DONE and ENTERED this 23rd day of November, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 23rd day of November, 1983.

ENDNOTES

1/ Petitioner's and Respondent Railway's Exhibits will be referred to as "P-

" and "R- ," respectively. Pages in the transcript of hearing will be referred to as "TR- ."

2/ The finding that these improvements are planned for completion during the next two years is based on hearsay testimony which--absent stipulation--cannot be used as the sole basis for a finding of fact. 120.58(1)(a), Fla. Stat., (1981). Here, the parties effectively stipulated to its use without the need to call the out-of-court declarant, the county engineer of Indian River County. (Stip.; TR-117-118)

COPIES FURNISHED:

Daniel L. Kilbride, Jr., Esquire 2065 15th Avenue

Vero Beach, Florida 32960

Charles Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32304

Charles B. Evans, Esquire and Carolyn O. Nofal, Esquire Florida East Coast Railway

Company

One Malaga Street

St. Augustine, Florida 32084

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

APPENDIX

Figure 1 Railway's Exhibit 1*

*NOTE: Figure 1, Railway's Exhibit 1 is a map of the proposed crossing location. It is available from the Division's Clerk's Office, but is not a part of this ACCESS document.

Docket for Case No: 83-001757

Orders for Case No: 83-001757