STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA EAST COAST RAILWAY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0536

) PALM BEACH COUNTY and FLORIDA ) DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on November 28-30, 1989, in West Palm Beach, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Lawrence Paine

Florida East Coast Railway 1550 Prudential Drive

Suite 400

Post Office Box 1380 Jacksonville, Florida 32201-1380

For Respondent

Palm Beach County: Ronald K. Kolins

Thomas A. Sheehan, III MOYLE, FLANIGAN, KATZ FITZGERALD & SHEEHAN, P.A.

Post Office Box 3888 625 North Flagler Drive

9th Floor-Barnett Centre

West Palm Beach, Florida 33402

For Respondent Department of

Transportation: Rivers Buford, Jr.

Department of Transportation Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The central issue in this case is whether the Department of Transportation (DOT) should approve the permit requested by Palm Beach County (County) for a railway grade crossing over the tracks of the Florida East Coast Railway (FEC) at Frederick Small Road.

PRELIMINARY STATEMENT

On or about November 4, 1988, the FEC received notice of an Intent to Issue Permit for a permit which was to be issued by the DOT for a railway grade crossing at Frederick Small Road in Palm Beach County. The crossing is requested by the County and is opposed by the FEC. The petition challenging DOT's intended permit was filed on December 5, 1988. The case was forwarded to the Division of Administrative Hearings for formal proceedings on February 2, 1989.

At the hearing, the County presented the testimony of the following witnesses: Mary Hinton, mayor of the Town of Jupiter; Herman W. Brice, Fire Rescue Administrator for the County; Richard J. Westgate, Chief of Police, Town of Jupiter; Paul Larsen, planner with the Metropolitan Planning Organization; Edwin F. Radson, District IV Railroad Coordinator for the DOT; James Zook, civil engineer with Zook Moore and Associates; Robert Paul Farrell, media relations and public information officer for the Palm Beach County Sheriff's Office; Karen Marcus, County Commissioner, Palm Beach County; Howard F. Ostrout, Jr., Director of Planning for the John D. and Catherine T. MacArthur Foundation; Griff H. Roberts, town manager for Jupiter; Charles R. Walker, Jr., director of the traffic division, Palm Beach County; and Robert George Holsinger, senior engineer with Wilbur Smith and Associates. The following witnesses testified on behalf of the FEC: Frank F. Stuart, manager of insurance and safety for the FEC; Marshal Eugene Deputy, Vice-President of Transportation for the FEC; W.S. Stokley, Chief Engineer for the FEC; William D. Tipton, Jr., accepted as an expert in traffic engineering; and William D. Tipton, Sr., accepted as an expert in transportation engineering. The County's exhibits numbered 1, 1a, 2, 3, 4,

4a, 5, 6, 7, 8, 9, 10, 11, 12, 12a, 12b, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,

23, 23a, 24, 25, 25a were admitted into evidence. The FEC's exhibits numbered 1 through 4 were admitted into evidence.

The transcript of the proceedings was filed with the Division of Administrative Hearings on January 4, 1990. The County filed a motion to extend the time for filing proposed recommended orders which was agreed to by all counsel of record. By order entered January 8, 1990, the parties were granted leave until January 23, 1990, to file their proposed recommended orders.

Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. On April 3, 1984, the Town of Jupiter, a municipality within the geographical boundaries of Palm Beach County, Florida, approved a resolution to participate with the County in an effort to obtain a railway grade crossing over the tracks of the FEC at Frederick Small Road.

2. Frederick Small Road is designated as a major arterial roadway under the County's thoroughfare plan and the Jupiter comprehensive land use plan.

   Both plans designate that Frederick Small Road be improved to connect State Road A-I-A to Military Trail to establish an east-west corridor. Consequently, the resolution described in paragraph 1 was passed so that the two entities could pool their resources to obtain the permit necessary to construct the crossing.

   
   

3. On or about June 12, 1984, the County engineer submitted a railroad grade crossing application to DOT. This application specified the crossing to be at Frederick Small Road and included attachments regarding the proposed location of the crossing, its design, and the authorization for the application from the local governments.

   
   

4. On October 27, 1988, DOT issued an Intent to Issue Permit which found that the criteria set forth in Section 335.141, Florida Statutes, together with the applicable rule, had been met and approved the crossing under specified conditions. Those conditions were:

   
   

   1. The FEC will provide, furnish or have furnished, all necessary materials required for, and will construct at the Applicant's expense, a standard railroad crossing Type "T" Modified in accordance with the Department's Standard Index Number 560 attached hereto and made a part hereof as Exhibit "D".

   2. Upon completion of the crossing, the Applicant shall be responsible for the maintenance and maintenance costs of the roadbed and surface outside the limits of the railway ties throughout the crossing area. The Railroad Company shall be responsible for the maintenance of all track structure and rail components, including the road surface and substructure within the width of the rail ties throughout the crossing area, all at the expense of the Applicant.

   3. The Railway Company shall furnish the necessary materials and install at the Applicant's expense, automatic grade crossing signals and/or other traffic control devices, Type - IV, Class - III, in accordance with the Department's Standard Index 17882 attached hereto and made a part hereof as Exhibit "E". Upon completion of the signal installation, the Applicant shall be responsible for the annual maintenance cost in accordance with the amounts specified in the Department's Form 841-37, as amended, attached hereto and made a part hereof as Exhibit "F". The Railway Company shall be responsible for the actual maintenance of the signal devices.

   4. The Applicant and Railroad Company shall enter into a Maintenance Agreement covering the grade crossing and signal devices and furnish the Department a copy of the executed Agreement.

   5. Construction of the public railroad - highway grade crossing shall commence within twenty-four (24) months from execution of this document or this permit shall become null and void.

      
      

5. Frederick Small Road is located within a rapidly developing area of northern Palm Beach County. Access to this area has been enhanced by the opening of a segment of Interstate 95. Since the opening, the Jupiter community has grown dramatically. Development has also been encouraged by the change in a policy of the MacArthur Foundation which is now allowing development of large tracts of its lands. Formerly, these lands, located in the vicinity of the proposed crossing, were to remain undeveloped.

   
   

6. As a result of the increase in population, traffic generated along Frederick Small Road has greatly increased. The other east-west corridors have also experienced increased traffic. Currently, traffic using Frederick Small Road must divert either north or south to railway crossings in order to cross the FEC. A crossing at Frederick Small Road would afford traffic a more direct access to a hospital, a school, and a major development.

   
   

7. The growth experienced in the Jupiter area is likely to continue. The crossing at Frederick Small Road would be more likely to be utilized and be more convenient to use than other alternate traffic routes.

   
   

8. The alternate traffic routes are congested; consequently, there are significant vehicular delays when trains traverse the crossings. An additional crossing at Frederick Small Road would not significantly delay railway traffic.

   
   

9. The opening of the Frederick Small Road crossing should result in an increased likelihood of rail-traffic accidents. However, the likelihood of more severe accidents at the alternate route crossings would increase if the crossing at Frederick Small is not opened.

   
   

10. A grade-separated crossing results in fewer rail- traffic accidents. Such crossings are appropriate when the traffic volumes are so great that the crossing at grade would result in a great likelihood of rail-traffic accidents. In this case, the estimated traffic volumes do not warrant a grade- separated crossing.

    
    

11. The opening of a railway grade crossing creates a potential for railway liability based upon accident costs. The effect of the crossing proposed for Frederick Small Road should not adversely affect the railroad's operation expenses in another way. The costs associated with the maintenance of the crossing will be borne by the applicant. The County intends to close one railway crossing at a location south of the one proposed for Frederick Small Road. The closing of that crossing should result in a net reduction in operating expenses for the FEC. The costs associated with the potential liability due to traffic-rail accidents are not certain. Those potential costs do not outweigh the convenience to be derived from the opening of the crossing.

12. The proposed design for the crossing and its signalization meet all applicable road-rail standards.

    
    

13. There are no visibility factors to preclude the opening of the grade crossing proposed for Frederick Small Road.

    
    

14. There are no existing passing tracks to be affected by the proposed crossing.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

16. Section 335.141, Florida Statutes, provides, in pertinent part: (1)(a) The department shall have regulatory

    authority over all public railroad-highway

    grade crossings in the state, including the authority to issue permits which shall be required prior to the opening and closing of such crossings.

    (b) A "public railroad-highway grade crossing" is a location at which a railroad track is crossed at grade by a public road.

    * * *

    (d) Prior to commencing the construction, rehabilitation, or maintenance of the railroad grade or highway approaches at a public railroad-highway grade crossing, the railroad company or governmental entity initiating the work shall notify the other party in order to promote the coordination of activities and to ensure a safe crossing with smooth pavement transitions from the grade of the railroad to the highway approaches.

    
    

17. Rule 14-46.003, Florida Administrative Code, provides, in pertinent part:

    
    

    1. Purpose. To provide rules for the Florida Department of Transportation (Department), pursuant to Section 335.141, Florida Statutes, for the establishment of uniform standards in the issuance of final orders of the department regarding permits for the opening and closing of public railroad-highway grade crossings. The two basic objectives of these uniform standards will be to

       1. Reduce the accident frequency and severity at grade crossings, and

       2. Improve rail and motor vehicle operating efficiency.

    2. Opening and Closing Public Grade Crossings.

       * * *

       1. Opening Public Grade Crossing. In considering the opening of a public grade crossing, the following criteria will apply:

    1. Necessity, convenience and safety of rail and vehicle traffic.

    2. Utilization of existing routes where practical.

    3. Effect of public grade crossings on the railroad's operations and expenses.

    4. Design of crossing structure, and road approaches.

    5. Visibility factors affecting either rail or vehicle traffic.

    6. Presence of passing tracks and their effect upon railroad and highway operations.

    
    

18. Based upon the above-referenced criteria, the County has established that the proposed crossing at Frederick Small Road will improve the motor vehicle operating efficiency without adversely affecting the rail efficiency. Further, the crossing at Frederick Small Road will, over time, reduce the severity of accidents occurring at the grade crossings. Consequently, the County has proved that the permit for a crossing at grade at Frederick Small Road should be granted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Department of Transportation enter a final order approving the permit application for a railway grade crossing at Frederick Small Road under the terms outlined in the Intent to Issue.

DONE and ENTERED this 6th day of March, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1990.

APPENDIX TO CASE NO. 89-0536

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 3 are accepted.

   
   

2. Paragraphs 4 through 7 are rejected as conclusions, argument, comment or contrary to the weight of the evidence.

   
   

3. With regard to paragraph 8, it is accepted that the opening of the Frederick Small Road crossing will result in an increased potential for automobile/rail accidents at that location; however, there will not be a substantial economic impact on the FEC such conclusion is rejected as contrary to the weight of the evidence.

   
   

4. With regard to paragraph 9, it is accepted that the Frederick Small Road crossing will cause reduced train speeds but that should not substantially impact the operations of the FEC; consequently, the balance of the paragraph is rejected as contrary to the weight of the evidence.

   
   

5. Paragraphs 10 and 11 are rejected as contrary to the weight of the evidence.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COUNTY AND DOT:

1. Paragraph 1 is accepted.

   
   

2. The first two sentences of paragraph 2 are accepted; the balance is rejected as comment, irrelevant, or argument.

   
   

3. Paragraph 3 is accepted.

   
   

4. The first sentence of paragraph 4 is accepted; the balance is rejected as comment, irrelevant, or cumulative.

   
   

5. Paragraphs 5 and 6 are accepted.

   
   

6. Paragraph 7 is rejected as irrelevant.

   
   

7. Paragraphs 8 and 9 are accepted.

   
   

8. Paragraph 10 is rejected as irrelevant.

   
   

9. Paragraphs 11-14 are rejected cumulative, irrelevant, or unnecessary to the resolution of the issues of this case.

   
   

10. Paragraph 15 is accepted.

    
    

11. Paragraph 16 is accepted.

    
    

12. Paragraphs 17-20 are rejected as argument, comment, or irrelevant.

    
    

13. Paragraph 21 is rejected as cumulative.

14. With regard to paragraph 22, it is accepted that the new crossing will result in an increase in train/vehicle accidents; otherwise the paragraph is rejected as argument or comment.

    
    

15. The first two sentences of paragraph 23 are accepted; the balance is rejected as argument or comment.

    
    

16. Paragraph 24 is accepted.

    
    

17. Paragraphs 25 through 28 are accepted.

    
    

18. Paragraphs 29 through 33 are rejected as cumulative, irrelevant, or comment.

    
    

19. Paragraphs 34 through 36 are rejected as comment, argument, or cumulative.

    
    

20. The first sentence of paragraph 37 is accepted; the balance is rejected as comment or argument.

    
    

21. Paragraph 38 is accepted.

    
    

22. Paragraph 39 is rejected as argument, comment, and irrelevant.

COPIES FURNISHED:

Ronald K. Kolins Thomas A. Sheehan, III MOYLE, FLANIGAN, KATZ

FITZGERALD & SHEEHAN, P.A.

Post Office Box 3888 625 North Flagler Drive

9th Floor-Barnett Centre

West Palm Beach, Florida 33402

Lawrence Paine Florida East Coast Railway Company

1550 Prudential Drive

Suite 400

Post Office Box 1380 Jacksonville, Florida 32201-1380

Rivers Buford

Department of Transportation Haydon Burns Building

605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III General Counsel

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-000536

Orders for Case No: 89-000536