STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION ) AND CSX TRANSPORTATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 89-3557

)

CITY OF MARIANNA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held, pursuant to notice by Stephen F. Dean, in Marianna, Florida, on October 2, 1989, on whether the South Caledonia Street railroad crossing in Marianna, Florida, should be closed.

APPEARANCES

For Petitioner: Michael D. Mee Department of 605 Suwannee Street

Transportation Tallahassee, Florida 32399-0458

For Petitioner: Stephen H. Shook CSX Transportation 500 Water Street

Inc. Jacksonville, Florida 32202

For Repondent: Herman D. Laramore City of Marianna Post Office Box 793

Marianna, Florida 32446 ISSUES

Whether the railroad crossing on South Caledonia Street in Marianna, Florida, should be closed.

PRELIMINARY STATEMENT

The Florida Department of Transportation (DOT) noticed the City of Marianna (City) of its intent to issue a permit to CSX Transportation, Inc. (CSX) to close the existing vehicular crossing of the CSX railroad tracks on South Caledonia Street in Marianna, Florida. The City of Marianna filed its petition for hearing pursuant to Rule 14-46.003, Florida Administrative Code, challenging the determination made by DOT. Although the City filed a petition for hearing, it was CSX and DOT who sought to alter the status quo and are the Petitioners.

FINDINGS OF FACT

1. The City is an incorporated city within the State of Florida. The subject railroad crossing on South Caledonia Street is located within the city limits of Marianna.

   
   

2. The DOT is the agency of state government which is charged with the regulation of railroad crossings, to include the determination of whether a crossing should be opened or closed.

   
   

3. The CSX is the railroad company which owns the railroad and railroad crossing in question and which may have to pay a portion of the costs of any improvements to the crossing.

   
   

4. South Caledonia Street is constructed along a section line and runs due south through Marianna connecting US 90, a major east-west arterial highway, with the southern portion of Marianna and its rural environs as it becomes Highway 73 at its intersection with Jefferson Street. See Railroad's Exhibit 1. South Caledonia Street, one of ten north-south streets which crosses the railroad within the limits of Marianna, is the only one which runs straight south over the tracks to Interstate 10. South Caledonia Street is one of the four streets which provides transit over the tracks in the eastern portion of Marianna.

   
   

5. In order from east to west, Jefferson Street, Green Street, Caledonia or South Caledonia Street (the one in question), and West Caledonia Street run north and south and provide the principal links between US 90 and South Street, in the eastern portion of the City. South Street is a major east-west street in the southern part of the City. The other east-west roads south of US 90 are Jackson Street north of the railroad; Pearl Street running west from South Caledonia between the railroad and South Street; and unpaved Franklin Street running eastward immediately north of the railroad between Caledonia and Green Streets and running westward south of the railroad between Caledonia and West Caledonia Streets. South Caledonia and West Caledonia Streets are principally residential from South Street to one block south of the railroad tracks, and commercial north of the railroad tracks. DOT's Exhibit 1 is an annotated aerial photograph of this portion of the City showing the major roads named above and the daily traffic counts on them.

   
   

6. In recent years, the railroad crossings on West Caledonia, Green, and Jefferson Streets have been upgraded to current standards. The crossing on Caledonia Street is not improved, and the street is in very poor condition between Jackson and Pearl Streets; however, planned resurfacing of the street has been delayed while this case is litigated because upgrading the crossing will require recontouring of Caledonia Street. The poor condition of Caledonia Street has reduced traffic on the street over the railroad and has caused the existing traffic to go slower. There has never been a train-car accident at the South Caledonia Street crossing.

   
   

7. Recontouring Caledonia Street at the railroad crossing will eliminate or reduce access to A.B. Williams Concrete and Block Company from Caledonia Street; however, there is access to the company from Green Street. The owner supports keeping the crossing open even if it restricts access to his business. Recontouring Caledonia Street would make it feasible for heavy trucks to move over the crossing on South Caledonia Street which is Highway 73 south of its intersection with Jefferson Street. Currently, the majority of the heavy truck traffic is using West Caledonia to move south and turning left on South Street

   to come back to Caledonia Street and out Highway 73. The intersection of West Caledonia and South Street is not well suited for such traffic.

   
   

8. It will cost at least $250,000 to upgrade the existing crossing. It costs $612 each year to maintain the upgraded crossing. Letting the crossing remain open will have no effect on the operations of the railroad. There was no evidence presented on the costs of paving Franklin Street or the unpaved portions of the railroad right-of-way to enable traffic stopped at the railroad to move east and west north of the tracks or westward south of the tracks.

   There is no available route eastward south of the tracks.

   
   

9. No evidence on the traffic count over the crossing was presented. The DOT did not take a traffic count over the crossing. If the closure of the South Caledonia Street crossing increases the traffic on Jefferson Street, currently 4,000 vehicles per day, to 5,000 vehicles per day, the Jefferson Street crossing will have to be upgraded to have bells, lights and gates. A significant increase in traffic count on Jefferson Street is possible given the current use rate of Caledonia Street north and south of the railroad, which is known. No evidence was presented on the cost of upgrading the Jefferson Street crossing.

   
   

10. Caledonia Street is not used by emergency vehicles or school buses, and there are viable alternatives for emergency vehicles to cross the railroad tracks if this crossing were eliminated. However, closing this crossing will create a cul-de-sac north and south of the existing crossing on Caledonia Street because of the absence of paved east-west through streets. As indicated above, it will be very inconvenient and costly to create east-west links to eliminate these cul-de-sacs.

    
    

11. In spite of the poor condition of the crossing and the road surface and the availability of alternatives, Caledonia Street carries more traffic than does Green Street which has had its crossing upgraded. Caledonia Street, upon which the subject crossing is located, is the only straight north-south route from US 90 to Highway 73. The preservation of this route for the future must be considered.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings conducts hearings on the opening and closing of public grade crossings pursuant to Chapter 120 and Section 335.141, Florida Statutes, and Rule 14-46.003(2), Florida Administrative Code.

    
    

13. Rule 14-46.003(2)(b), Florida Administrative Code, provides that the following be considered when closing a public railroad crossing:

    
    

    1. Necessity, convenience and safety effects upon rail and vehicle traffic.

    2. Utilization of remaining routes where practical.

    3. Effect of closing on rail operations and expenses.

    4. Excessive restrictions to emergency-type vehicles resulting from closing.

       
       

14. From the findings above, the closing would have no effect on necessity or emergency vehicles. The only effect upon safety will be the elimination of one potential point of conflict or contact between rail and vehicular traffic. There has never been a train-car accident at this crossing.

15. Immediately, it will be inconvenient; and as time progresses, closing this crossing will have an increasing impact because Caledonia Street is the only direct southern route from US 90 to Highway 73. While there are other routes which could handle this traffic, there is no evidence that DOT has considered the impact of this proposed closure on these alternative routes and the traffic volumes at the other crossings.

    
    

16. The evidence presented on the alternative routes indicates that Jefferson Street is the most heavily used route, linking Highway 73 with US 90 around the east end of town. However, the impact on the 4,000 plus daily traffic count on Jefferson Street was not developed. It is noted that the rules require bells, lights and gates on a crossing carrying over 5,000 vehicles daily. The traffic count on the Caledonia crossing was not taken by DOT; however, from the counts on Caledonia Street north and south of the crossing, the proposed closure could increase Jefferson Street's count enough to require gates at this crossing.

    
    

17. DOT did not consider the character of Green Street, the next most easterly alternate route. The impact of the radical curve seen in the aerial photograph immediately north of the intersection of Green Street and South Street on the use of Green Street was not considered. The current traffic volume indicates that this is not a preferred route. DOT did not consider the impact of the cul-de-sacs north and south of the crossing created by the proposed closing or the cost of eliminating them.

    
    

18. The evidence revealed that West Caledonia Street is a commercial strip north of the railroad and residential south of the railroad. The intersection of West Caledonia Street and South Street is on a hill and is not well suited for heavy traffic.

    
    

19. Beyond the potential improvement in safety, the only other benefit is the cost savings from not upgrading the existing crossing. This benefit exists only if increased traffic flow does not require lights, bells and gates on Jefferson Street or the other alternative crossings. Balancing the long term negative effects on convenience, to mention the loss of planning options for traffic flow in the future, against the possible savings of $250,000, this crossing does not meet the criteria for closure set forth in Rule 14- 46.003(2)(b), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that CSX, Inc.'s Petition to close the public vehicular crossing on Caledonia Street in Marianna, Florida, be denied, and said crossing be kept open.

DONE AND ORDERED this 14th day of November, 1989, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1989.

COPIES FURNISHED:

Mr. Ben C. Watts Interim Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Michael D. Mee, Esquire Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Stephen H. Shook, Esquire

500 Water Street Jacksonville, Florida 32202

Herman D. Laramore, Esquire Post Office Box 793 Marianna, Florida 32446

=================================================================

AGENCY REMAND

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION AND CSX TRANSPORTATION, INC.,

Petitioners,

vs. DOAH CASE NO. 89-3557

CITY OF MARIANNA,

Respondent.

/

ORDER REMANDING CAUSE FOR RECONSIDERATION

The Recommended Order was issued in this cause on November 14, 1989. On December 4, 1989, the Department of Transportation filed Agency's Exceptions to Recommended Order, copy of which is attached. A review of the complete record has been made.

The Department of Transportation remands the instant cause to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, for reconsideration based on the following:

The Recommended Order states in Finding of Fact Number 9 that the closure or the South Caledonia Street crossing would increase the traffic on Jefferson Street resulting in one upgrading of the Jefferson Street crossing by the addition of bells, lights and gates. The finding is not supported by competent substantial evidence in the record. At the hearing below, testimony was adduced that the Jefferson Street crossing has already been upgraded with bells, lights and gates. (Transcript pages 99 - 100)

Since the Hearing Officer relied, in part, upon this incorrect factual determination, the case is remanded to the Hearing Officer for reconsideration pursuant to the facts as corrected.

Accordingly, IT IS ORDERED that the instant cause is remanded, for twenty days following receipt of this Order, to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings for reconsideration.

DONE AND ORDERED, this 21st day of December, 1989.

BEN G. WATTS,

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

COPIES FURNISHED:

Stephen H. Shook, Esquire

500 Water Street Jacksonville, Florida 32202

Herman D. Laramore, Esquire Post Office Box 793 Marianna Florida 32446

Michael D. Mee

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

================================================================= ORDER ON REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION ) AND CSX TRANSPORTATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 89-3557

)

CITY OF MARIANNA, )

)

Respondent. )

)

ORDER ON REMAND

On December 21, 1989, the Department of Transportation issued an order remanding this case to the hearing officer because the hearing officer had found that "the closure of South Caledonia Street crossing would increase traffic on Jefferson Street resulting in the upgrading of the Jefferson Street crossing by

the addition of bells, lights, and gates." The order of remand finds that this finding is not supported by substantial and competent evidence and that the evidence presented shows that the crossing has already been upgraded with bells, lights and gates. The order of remand recites that "Since the Hearing Officer relied, in part, upon this incorrect factual determination, the case is remanded to the Hearing Officer for reconsideration pursuant to the facts as corrected."

Various aspects of the proposed closing of the South Caledonia Street railroad crossing are discussed in the conclusions of law, to include, the effect on rail operations and expenses. The conclusions state in pertinent part:

Beyond the potential improvement in safety, the only other benefit is the flow in the future, must be balanced against the savings of not up grading the existing crossing reduced by the cost of eliminating the cul-de-sacs created north and south of the tracks by the proposed closure. Taken as a whole, the Department has not shown this crossing meets the criteria for closure set forth in rule 14-46.003(2)(b) Florida Administrative Code.

DONE AND ORDERED this 17th day of January, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1990.

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, Florida 32399-0450

Michael D. Mee, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Stephen H. Shook, Esquire

500 Water Street Jacksonville, Florida 32202

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION AND CSX TRANSPORTATION, INC.,

Petitioners,

vs. CASE NO. 89-3557

CITY OF MARIANNA,

Respondent.

/

FINAL ORDER

The record in this proceeding and the Recommended Order of the Hearing Officer, as amended on remand, have been reviewed. Petitioner, Florida Department of Transportation, has filed exceptions to the Recommended Order which are considered and addressed below.

The Findings of Fact and Conclusions of Law set forth in the Recommended Order, as amended, are considered correct and are incorporated herein as part of this Final Order.

Petitioner takes exception to the Recommended Order, as amended, contending that particular findings of fact and legal conclusions based thereon are unsupported by the record. Review of the record reveals that the Hearing Officers factual findings and reasonable inferences drawn therefrom are adequately grounded upon the record. In turn, the Hearing Officer's legal conclusions based upon his findings are not contrary to the law and cannot properly be revisited by the agency. Consequently, Petitioner's exceptions to the Recommended Order, as amended, must be rejected. Tuveson v. Florida Governor's Council, 495 So.2d 790 (Fla. 1st DCA 1986); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

Accordingly, the Hearing Officer's recommendation is adopted and it is

ORDERED that the petition for closure of the South Caledonia Street crossing in Marianna, Florida, filed by CSX Transportation, Inc., be and the same is hereby denied.

DONE AND ORDERED this 2nd day of March, 1990.

BEN G. WATTS,

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

COPIES FURNISHED:

Stephen F. Dean Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1500

Michael D. Mee, Esquire Department of Transportation Office of the General Counsel 605 Suwannee Street

Tallahassee, Florida 32399-0458

Stephen H. Shook, Esquire

500 Water Street Jacksonville Florida 32202

NOTICE OF RIGHT TO JUDICIAL REVIEW

The following information is required by law to be included in all Final Orders:

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceeding, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 89-003557

Orders for Case No: 89-003557