STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF NEWBERRY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6023

) DEPARTMENT OF TRANSPORTATION and ) FLORIDA WEST COAST RAILROAD, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 17, 1994 in Newberry, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: S. Scott Walker, Esquire

WATSON, FOLDS, STEADHAM CHRISTMANN, BRASHEAR, TOVKACK & WALKER

Post Office Box 1070 Gainesville, Florida 32602

For Respondent: Charles G. Gardner, Esquire DOT Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: David H. Anderson, Esquire FWCR 47 Sheple Lane

Groton, Massachusetts 01450 STATEMENT OF THE ISSUE

Whether the application of Florida West Coast Railroad to close a public at-grade railroad crossing in Newberry, Florida should be approved.

PRELIMINARY STATEMENT

This proceeding involved Florida West Coast Railroad Company's application to close a right-of-way on Northwest 5th Street located within the City of Newberry, Florida. The Department of Transportation issued a notice of intent to issue a permit to close this crossing on September 13, 1993. The City of Newberry objected to this closing and timely requested a formal hearing pursuant to Section 120.57(1) F.S.

Upon appropriate inquiry, David H. Anderson was accepted on the record as the qualified representative on behalf of Florida West Coast Railroad pursuant to Rules 60Q-2.007 and 60Q-2.008 F.A.C.

The Respondents went forward with their case pursuant to the parties' stipulated order of proof and presented the oral testimony of Jimmy Keen, Clyde

S. Forbes, and Gary Bechdol and had 15 exhibits admitted in evidence. Petitioner presented the oral testimony of James Sewell, Buddy Jeffcoat and Freddie L. Warmack and had two exhibits admitted in evidence.

A transcript was filed March 18, 1994. The Department of Transportation's proposed recommended order was filed March 28, 1994. The City of Newberry's proposed recommended order was filed April 4, 1994. The Florida West Coast Railroad filed no post-hearing proposals. All proposed findings of fact have been considered and ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Florida West Coast Railroad (FWCR) applied to the Florida Department of Transportation (FDOT) to close an "at-grade" railroad crossing at Northwest 5th Street in the City of Newberry, Florida.

   
   

2. By date of September 13, 1993, FDOT issued its Intent to Issue Permit (approval of FWCR's closing application) to all interested parties showing a scheduled on-site conference at the crossing location on May 6, 1993.

   
   

3. FDOT's intent to approve FWCR's application was not altered subsequent to the opportunity for input by representatives of the City of Newberry at the May 6, 1993 conference and at a public hearing.

   
   

4. The City had at least one public official or an official's designee present at both of the foregoing events.

   
   

5. The City timely filed its request for a formal hearing pursuant to Section 120.57(1) F.S. dated October 6, 1994.

   
   

6. A CSX railroad track runs roughly northwest to southeast, through the City of Newberry. It effectively bisects the city, west and east. The FWCR railroad track runs roughly northeast to southwest and intersects the CSX track in a rough "X" shape . There are six crossings on the FWCR track and five on the CSX track, all within the city limits.

   
   

7. Northwest 5th Street, Newberry, consists of an unimproved dirt right- of-way. The average vehicular traffic count is eleven vehicles per day. The crossing FWCR seeks to close is officially numbered D.O.T./A.A.R. 625898V, also known simply as "898."

   
   

8. By the parties' stipulation, it is undisputed that Crossing 898 is within the city limits at Northwest 5th Street in the City of Newberry, Alachua County. It is also stipulated and undisputed that two freight trains traverse the crossing daily at a speed of approximately ten miles per hour; that the crossing is not used by any school buses; and that the only warning devices are "crossbucks."

9. James Sewell, Fire Chief for the City of Newberry, is the coordinator for Emergency Medical Services (EMS) within the city. His department provides basic life support (BLS) in conjunction with advanced life support (ALS) provided by the County of Alachua to city residents under an inter-local agreement. The city's emergency medical equipment and fire truck are kept at the City Fire Department on North Main Street, just north of its intersection with Northwest 3rd Avenue.

   
   

10. Northwest 3rd Avenue runs directly west from its intersection with North Main Street, eventually intersecting with Northwest 4th, 5th and 6th Streets. At the intersection of Northwest 3rd Avenue and Northwest 4th Street is a fire hydrant. At the intersection of Northwest 3rd Avenue and Northwest 5th Street is the 898 crossing.

    
    

11. Chief Sewell and other city witnesses expressed concern that the closing of Crossing 898 would impede rapid response by ambulances, fire, or other emergency vehicles and would lessen accessibility to the service area denominated "the northwest quadrant," which is becoming more residential. The northwest quadrant is located north of the FWCR track and its crossings 898 and 899 which intersect it.

    
    

12. FDOT and FWCR advocated that the city fire and emergency medical vehicles could respond from the Fire Department and go south on Main Street to Central Avenue (SR 26) then west on Central Avenue to Northwest 6th Street and north on Northwest 6th Street across Crossing 899 to reach the northwest quadrant. At the present time they can do that, and they also can turn one block earlier and take NW 5th Street north from Central and across Crossing 898, something they could not do if Crossing 898 is closed.

    
    

13. The county vehicles could traverse SR 26 which is also Central Avenue, to Northwest 6th Street and use Crossing 899 to reach the northwest quadrant without having to digress to the Fire Department. At the present time, they can also take Northwest 5th Street to Crossing 898.

    
    

14. Although Chief Sewell acknowledged that there was a fairly even distribution of fire hydrants throughout the city, he also testified that Crossing 898 encompasses a primary route for city fire trucks responding to a structural fire because of the hydrant located at 4th Street and 3rd Avenue. He has often had to use Crossing 898 and the hydrant at 4th Street and 3rd Avenue for fire responses and command procedures associated with those fires. As recently as last year, the city experienced a major brush fire in the northwest quadrant with high gusting winds which would have been difficult to contain without utilizing that hydrant. If he had not been able to use Crossing 898, he would have had to go to Northwest 6th Street Crossing No. 899 or 6th Avenue Crossing 622495 a/k/a "495." The 6th Avenue Crossing 495 is north of the FWCR track and Crossings 898 and 899 and intersects the CSX railroad track. Chief Sewell testified that although he could have still strung water lines that far, he would also have had to send his fire truck back to that hydrant, away from the scene of the fire, institute different command procedures which might be less effective, and increase his fire vehicle response time in that area from thirty seconds to roughly two minutes.

    
    

15. According to Chief Sewell, Crossing 898 encompasses a primary route for city EMS vehicles and it constitutes the quickest, shortest route to an emergency in the northwest quadrant, especially for a heart attack or stroke

    victim who should receive care within four minutes of a "911" call. After six to eight minutes, an untreated heart attack or stroke victim can suffer irreversible brain damage.

    
    

16. If someone in the northwest quadrant calls "911", the city's EMS vehicle can now respond via 6th Avenue Crossing 495, Northwest 5th Street Crossing 898, or Northwest 6th Street Crossing 899. It was not demonstrated how response via Crossing 495 could be very effective or speedy, however, or how the city emergency vehicles would reach Crossing 495, given its location on the north side of the FWCR tracks unless they used some other crossing too. If 6th Avenue Crossing 495 were blocked, vehicles could use 1st or 2nd Avenues to get to Crossing 898 or 899 now or to get to Crossing 899 if 898 is closed.

    
    

17. Crossing 898 at Northwest 5th Street is a primary route, particularly if other crossings are blocked. Blockage of several crossings at once is common when the CSX coal train, which is over a mile in length, stops for ten to fifteen minutes at a time. That train comes through Newberry twice a day and can come through more often. It is possible for Crossings 496 at 2d Avenue, 497 at 1st Avenue, and 498 at Central Avenue on the CSX track to be simultaneously blocked by this train, which effectively blocks both Crossings 898 (Northwest 5th Street) and 899 (Northwest 6th Street) as well. The Mayor has had to break the train to allow emergency vehicles to pass on occasion.

    
    

18. There have been no vehicular-train accidents at Northwest 5th Street (898), Northwest 6th Street (899) or Northwest 6th Avenue (495) since 1979.

    
    

19. There is only a block between Northwest 5th and 6th Streets in the city. Northwest 6th Street is paved and its crossing 899 is comparatively flat. Crossing 899 also has advanced signage designed to prevent car-train accidents, which Crossing 898 does not. Crossing 898 at Northwest 5th Street is currently "signed" only with crossbucks.

    
    

20. Northwest 5th Street is unpaved and Crossing 898 is elevated significantly, both of which conditions may cause vehicular traffic to voluntarily slow to accommodate the jackknifing effect of topping the track. Modern cars may "bottom out" on it. Similar problems may exist for fire trucks and long emergency vehicles.

    
    

21. According to Chief Sewell, there is a "standard" that permits emergency vehicles to approach railroad crossings with care, subject to stopping for the protection of firefighters or patients. This means that paved unelevated roads, such as Northwest 6th Street do not necessarily make for quicker response times than dirt roads such as Northwest 5th Street.

    
    

22. The Northwest 6th Street crossing (899) is located 465 feet west of the Northwest 5th Street crossing (898) which FWCR seeks to close pursuant to this proceeding. Northwest 6th Street is connected to Northwest 5th Street by roadways on both sides of the railroad. Using Northwest 6th Street Crossing 899 or Northwest 6th Avenue Crossing 495 would increase travel time for the average motorist by approximately 30 seconds even when no crossing is impeded by a train. Trains on the track would be a further (longer time) impediment.

23. Clyde Forbes, on behalf of FWCR, testified that on one occasion a FWCR train derailed and simultaneously cut off Crossing 898 at 5th Street and Crossing 495 at 6th Avenue, but Crossing 899 at 6th Street was still available for entry to the northwest quadrant of the City. Apparently referring to this same incident, Mayor Warmack stated that the derailment occurred between 5th and 6th Streets, closing both Crossings 898 and 899.

    
    

24. Although the city did no maintenance with regard to Crossing 898 itself in the eleven years prior to the closing application, Buddy Jeffcoat, City Commissioner in charge of streets and roads, testified that the city recently paid for the area to be surveyed and the road shoulders cleared of underbrush. Residents were required to clear their adjoining property, and the City Commission established a goal of paving Fifth Street and the other two unpaved streets in Newberry within the next two years. Existing funds for such paving have been tentatively allocated. However, this plan for city development may be considered speculative, since the city witnesses testified in terms of city paving and maintenance of the crossing being conditioned upon FWCR agreeing to upgrade the crossing signage. Since crossing signage is partly an FDOT function, there are no guarantees at the present time that the city will pave Northwest 5th Street within two years.

    
    

25. No Local Comprehensive Plan was admitted in evidence.

    
    

26. Mayor Freddie Warmack testified that the City has allocated funds through S.H.I.P. to develop low-cost housing in the northwest quadrant. Two single-family residences have been built in the northwest quadrant in the last three months. This represents a significant increase in building in the area, considering the size of the City of Newberry.

    
    

27. Northwest 5th Street runs into a city-owned park. The park draws children, but there was no expert testimony as to whether or not pedestrian and bike traffic to the park is rendered safer or less safe due to Crossing 898.

    
    

28. There was no evidence presented to support a finding that FWCR intends to abandon its track.

    
    

29. FDOT's Procedure Manual states that, "The best grade crossing is a closed one. Closing a grade crossing is always the preferred alternative". FDOT personnel echoed this policy in testimony to the effect that the way to eliminate crossing accidents is to eliminate crossings, period. Prior to formulating its notice of intent, FDOT personnel admittedly did not review the City of Newberry's Local Comprehensive Plan, make a study of the City's

    prospective growth viz a viz Crossing 898, study any potential future changes in railroad traffic or determine specifically whether or not FWCR intended to utilize or abandon the material section of track. However, evidence on these issues was presented at formal hearing as described supra.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

    
    

31. FDOT exercises regulatory authority over all public railroad-highway grade crossings in the State of Florida pursuant to authority contained in Section 335.141 F.S. In accordance with that authority, FDOT has promulgated administrative rules. The following rule is important for purposes of this case.

    Rule 14-46.003(2):

    
    

    1. Closing Public Grade Crossings. In considering the closing of a pubic grade crossing, the following criteria will apply:

       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 restriction to emergency type vehicles resulting from closing.

    2. Closing Public Grade Crossings by Department.

       * * *

       3. Should the governmental body bearing current jurisdiction over the crossing reject the proposed closing, the Department will prepare a technical presentation supporting the closing and present the findings of fact to the governmental body. The burden of proof for the retention of a crossing is on the governmental body. The Department may

       proceed with the closure process under the criteria listed in 14-46.003(2)(b) only after due consideration of the governmental body's response. (Emphasis supplied)

       
       

32. Although the parties stipulated that the duty to go forward and burden of proof in this cause were upon FDOT and FWCR, the legal standard appears to be otherwise. See, Rule 14-46.003(2)3. F.A.C.

    
    

33. FDOT's Procedure Manual restates the rule closure criteria in section

    1. and provides insight into what the agency nominally considers an excessive restriction to emergency vehicles. Section 2.3.4 of the manual fills out the foregoing considerations and directs FDOT to consult with the governmental body involved to determine compatibility with established growth plans. See, 1.4.10 Identifying Unnecessary Grade Crossings

       
       

       The best grade crossing is a closed one. Closing a grade crossing is always the preferred alternative. Any grade crossing having all of the following characteristics is a candidate for closing:

       
       

       1. Less than 2,000 vehicles per day, and

       2. More than two trains crossing per day, and

       3. Alternative (accessible) crossing within

          0.25 miles with less than 5,000 vehicles per day if two-lane highway, or less than 15,000 vehicles per day if four-lane, and

       4. Road does not serve as a main alternative route for ambulances, fire or other emergency vehicles, and

       5. More than five crossings within any one mile section of a main line track.

    District personnel are encouraged to employ closing of crossings as part of the rail highway grade crossing improvement programs. The Rail Office is responsible for administering the crossing closure program.

    
    

    The Department under F.S. 335.141 has the authority to close any unnecessary grade crossings. To close a crossing requires an administrative hearing as outlined in Department Rule 14-46.003. This procedure is explained in paragraph 2.3.4.

    (Emphasis supplied)

    * * *

    
    

    1. Implementation (Closing Grade Crossings)

       
       

       Any nonessential highway traversing a railroad track should not remain open. Upon identifying such a location, District personnel should initiate a study to determine the feasibility of closing the crossing. In analyzing particular crossings for possible closure, the following factors should be considered:

       1. Negative Impact to Local Transportation System: Foremost in considering this important factor is the existence of alternate public crossings that provide reasonable travel times to motorists who are forced to use different routes. Alternate crossings must have sufficient capacity to accommodate the diverted traffic in a safe and efficient manner. Connecting roadways between the terminated approaches to the closed crossing and the approaches to the alternate crossing must also be suitable to

          carry the type and volume of diverted traffic.

       2. Emergency Vehicle Routes: No crossing should be closed that serves as a main alternative for ambulances, fire trucks,

          or other emergency vehicles.

       3. Potential Hazards: The crash experience or hazard potential for the crossing under study should be carefully evaluated. Data items that should be reviewed include:

          1. Number and severity of crashes

          2. Type and number of trains

          3. Train speed range

          4. Time periods that crossing is blocked by train.

       4. Hardship to Local Businesses: The economic impact to existing or planned nearby businesses whose patrons or delivery vehicles utilize the crossing considered for closure should be studied.

       5. Compatibility with Local Growth Plans: City, county, and state planning agencies should be consulted to determine if closure of the crossing and resulting changes in travel patterns are compatible with established growth plans.

       6. Future Changes in Railroad Traffic: Each railroad company operating over a crossing considered for closure should indicate in detail its intent for future utilization of that section of track. If abandonment is anticipated, closure proceedings should cease.

    
    

34. The City of Newberry argued that FDOT's failure to comply with its own procedure manual should serve as a basis for denial of the requested permit. While FDOT's procedure prior to its intent to issue was not ideal, the agency substantially complied with its procedure, and any omissions have been cured by consideration of those elements in the course of the de novo formal hearing herein. Consequently, those omissions now constitute harmless error as an agency's failure to follow an internal procedure rather than failure to follow its own duly promulgated rule.

    
    

35. The passage of a mere eleven vehicles per day does not suggest that Crossing 898 is so necessary or convenient to regular vehicular traffic as to be indispensable. The 30 seconds increase in travel time for most vehicular traffic if 898 were closed is not burdensome. Other routes can easily be utilized by ordinary vehicles, pedestrians, and bicyclers. In light of the past zero accident rate, there is neither gain nor loss to be anticipated if 898 is closed. See, Rule 14-46.003(2) F.A.C.

    
    

36. Clearly, there are less than 2,000 vehicles per day crossing at Crossing 898. Only two trains per day use it as a general rule, although there is some evidence of more trains on occasion. There is an alternative and accessible crossing within .25 miles. There are six crossings on the same railroad track within one mile. See, FDOT Procedure Manual, Section 1.4.10.

    
    

37. Diverted traffic can be accommodated by the available alternative routes. No evidence was presented on hardships to local businesses. No anticipated changes to railroad traffic were presented. The local growth plan, only explained orally, is so speculative as to be neutral to this closure decision. The number and severity of crashes (none), the type and number of trains, and the train speed range favor closing this crossing. See, FDOT Procedure Manual, Section 2.3.4.

    
    

38. Therefore, the assessment of whether or not Crossing 898 should be closed devolves upon an assessment of whether or not such closing would constitute an excessive restriction to emergency vehicles by loss of a main or alternative route. See Rule 14-46.003(2)(b)4 F.A.C. and FDOT Procedure Manual, Section 2.3.46.

    
    

39. Although 2.3.4.(c)4. of the FDOT Procedure Manual was intended to be considered exclusively with regard to crossing 898, the circumstances of the present case also make it appropriate to consider the proximity to 898 of all crossings on whichever track they intersect.

40. The City of Newberry is unusual, perhaps unique, in that it has five railroad crossings linearly along the north-south track and six railroad crossings linearly along the east-west track, all within the city limits and all of which can be virtually immobilized by either a parked train or a derailed train. The northwest quadrant can be reached by EMS vehicles only by using at least two crossings. Under these circumstances, the loss of any one crossing can significantly and negatively impact response time for city emergency vehicles originating on Main Street at the Fire Department. At best, city vehicles would certainly have to slow for two crossings every time they responded or worse, would have to wait for, or break, a train at one or even two crossings. Since just the twice-a-day coal train is capable of disrupting traffic at any and all crossings for as long as 10-15 minutes each time, the City of Newberry needs to retain all available options to lessen response time. In reaching this conclusion the undersigned has strongly weighted the need for the use of the Northwest 3rd Avenue and Northwest 4th Street fire hydrant and the need for EMS to reach heart/stroke victims in less than six minutes.

    
    

41. But for the evidence that the closure of crossing 898 would constitute an excessive restriction to emergency vehicles on main and alternative routes, this crossing should be closed. However, upon that evidence and the foregoing findings of fact, it is determined that the City of Newberry has successfully borne its burden of proof and should prevail in preventing the closure of Crossing 898.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the requested permit for

closure of D.O.T./A.A.R. 625898V railroad crossing in Newberry, Florida.

RECOMMENDED this 1st day of June, 1994, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1994.

APPENDIX TO RECOMMENDED ORDER 93-6023

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

FDOT's PFOF:

1. Accepted

2. Rejected as a proposed fact because it represents a proposed conclusion of law. See, Conclusions of Law.

3-9 Accepted as modified

10 Accepted that this was testified but not dispositive in light of other evidence. See Findings of Fact 16 and 19.

11-12 Accepted but modified for clarity.

1. Rejected in light of other competent evidence. See Finding of Fact 24.

2. Accepted

3. Rejected as a proposed finding of fact because it represents a proposed conclusion of law. See, the Conclusions of Law.

4. Rejected as stated because it is misleading to the evidence as a whole and does not contain a transcript or evidentiary reference. See, Findings of Fact 16, 19 and 22.

5. Rejected as stated because it is misleading to the evidence as a whole and does not contain a transcript or evidentiary reference. See, Finding of Fact 18.

6. Rejected as not supported by the greater weight of the evidence and because it does not contain a transcript or evidentiary reference.

7. Rejected as a proposed finding of fact because it represents a proposed conclusion of law. See, the Conclusions of Law.

City of Newberry's PFOF:

1. Except for mere legal argument, accepted within the findings of fact or covered under "Preliminary Statement."

2. Rejected as subordinate, as mere recitation of isolated, unreconciled testimony, and/or as a proposed conclusion of law. See, Finding of Fact 29.

3. Rejected as a proposed finding of fact because it represents a proposed conclusion of law; See Conclusions of Law.

4-5 Accepted, but unnecessary, subordinate, or cumulative material has not been utilized.

1. Sentence 1: Rejected in part as not supported by the record as a whole and in part as mere legal argument or subordinate; See, Findings of Fact 3-4.

   Sentence 2: Accepted.

   Sentence 3: Accepted.

   Sentence 4: Accepted.

   Sentence 5: Accepted as modified to more closely conform to the record as a whole.

   Sentence 6: Accepted as modified to more closely conform to the record as a whole.

2. Accepted, except that unnecessary, subordinate, or cumulative material has not been utilized. Testimony that could not be reconciled is covered in Finding of Fact 23.

3. Accepted, except that unnecessary, subordinate, or cumulative material has not been utilized.

4. Rejected as a proposed finding of fact because it represents a proposed conclusion of law; See Conclusions of Law.

5. Rejected in part and accepted in part as supported in the record. See, all Findings of Fact but particularly Findings of Fact 24-29.

6. Unnecessary.

FWCR's PFOF: None filed.

COPIES FURNISHED:

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

Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street

Tallahassee, FL 32399-0450

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0450

S. Scott Walker, Esquire WATSON FOLDS

Post Office Box 1070 Gainesville, Florida 32602

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

David H. Anderson, Esquire

47 Sheple Lane

Groton, Massachusetts 01450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-006023

Orders for Case No: 93-006023