STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 31, 1994, in Milton, Florida.

APPEARANCES

For Petitioner, CSX Transportation, Inc.: Stephen H. Shook, Esquire

CSX Transportation

Law Department

500 Water Street Jacksonville, Florida 32202

For Petitioner, Department of Transportation: Charles G. Gardner

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58 Haydon Burns Building

Tallahassee, Florida 32399-0458

For Respondents, Clyde L. & Susan S. Godwin: Clyde L. & Susan S. Godwin, pro se

3321 Hudson Bend

Milton, Florida 32583

For Respondents, Steve & Laura House: Failed to Appear

For Respondent, India B. McLeod:

India B. McLeod, pro se 900 North 21st Avenue Milton, Florida 32583

For Respondents, Earl W. & Zanola R. Gatewood: Earl W. & Zanola R. Gatewood, pro se

1361 Tinsley Road

Milton, Florida 32583

For Respondents, Mark W. & Patti J. Gatewood: Failed to Appear

For Respondents, John F. & Katherine H. Edwards:

John F. & Katherine H. Edwards, pro se 2401 Old Military Road

Mobile, Alabama 36605

For Respondent, Lucille Williams Gatewood:

Lucille Williams Gatewood, pro se 5212 Tinsley Road

Milton, Florida 32583

For Respondent, Mary W. Henderson:

Mary W. Henderson, pro se 3480 Country Lane

Milton, Florida 32583

For Respondent, Jane McMillan Greenwood: Failed to Appear

For Respondents, Clifton D. & Christa Childers:

Clifton D. & Christa Childers, pro se 1013 North 16th Avenue

Milton, Florida 32583

STATEMENT OF THE ISSUE

Whether the Petitioner, CSX Transportation, Inc., is entitled to close an at-grade railroad crossing on Country Lane in Santa Rosa County, Florida?

PRELIMINARY STATEMENT

CSX Transportation, Inc., filed an application with the Department of Transportation for permission to close an at-grade railroad crossing located in Santa Rosa County, Florida. The Department of Transportation issued a notice indicating that it intended to grant the application. Ten separate requests for hearing challenging the proposed decision of the Department of Transportation were filed by the Respondents.

On November 2, 1993, the Department of Transportation filed the requests for hearing by letter with the Division of Administrative Hearings. Ten separate cases were opened. The cases were initially assigned to P. Michael Ruff. By Order entered November 17, 1993, the ten separate cases were consolidated.

Prior to the final hearing of this matter, the cases were transferred to the undersigned.

At the commencement of the final hearing, John F. Edwards was accepted by the Respondents present at the final hearing to present the Respondents' case.

During the final hearing the Department of Transportation presented the testimony of George William Clark and Gary Bechdol. The Department of Transportation also offered exhibits 1 through 7 and 10 through 11. Those exhibits were accepted into evidence.

CSX Transportation, Inc., presented the testimony of Steven Kelly and Ed Brogdon and offered one exhibit. CSX's exhibit was accepted into evidence.

The Respondents presented the testimony of Clyde Godwin, Wesley W. Childers, India B. McLeod and John F. Edwards. Respondents also offered three exhibits which were accepted into evidence.

The parties stipulated that the Respondents who appeared at the hearing live at the addresses listed in their petitions.

Official recognition of Rule 14-446.003(2), Florida Administrative Code, was taken.

A transcript of the final hearing was filed April 20, 1994. Proposed recommended orders were, therefore, required to be filed on or before May 9, 1994. CSX Transportation, Inc., filed its proposed recommended order on May 9, 1994. The Department of Transportation filed a proposed recommended order on May 20, 1994. John F. Edwards filed a proposed recommended order on May 10, 1994. No other Respondent filed a proposed recommended order.

In light of the fact that Mr. Edwards filed his proposed recommended order only one day late, it is doubtful that Mr. Edwards gained any advantage. Mr.

Edwards' proposed recommended order has, therefore, been considered. The proposed recommended order filed by the Department of Transportation, however, was filed long after the proposed recommended orders of the other parties were filed. Therefore, the Department of Transportations' proposed order had not been considered.

A ruling on each proposed finding of fact contained in the proposed orders filed by CSX Transportation, Inc., and Mr. Edwards has been made either directly or indirectly in this Recommended Order, or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. CSX Transportation, Inc. (hereinafter referred to as "CSX"), operates a railroad which runs essentially east-west through Santa Rosa County, Florida.

      
      

   2. The Department of Transportation (hereinafter referred to as the "Department"), is charged pursuant to Section 335.141, Florida Statutes, and Rule 14-46.003, Florida Administrative Code, with responsibility for authorizing the closure of public railroad crossings.

      
      

   3. The Respondents who appeared at the final hearing of these cases live and their addresses in Santa Rosa County are as follows:

      
      

      Clyde L. & Susan S. Godwin 3321 Hudson Bend

      
      

      India B. McLeod

      900 North 21st Avenue

      
      

      Earl W. & Zanola R. Gatewood 1361 Tinsley Road

      
      

      Lucille Williams Gatewood 5212 Tinsley Road

      
      

      Mary W. Henderson 3480 Country Lane

      
      

      Clifton D. & Christa Childers 1013 North 16th Avenue

      
      

   4. Respondents John F. and Katherine H. Edwards live at 2401 Old Military Road, Mobile, Alabama. They own a house on Santa Cruz Boulevard in Santa Rosa County.

      
      

2. CSX's Application.

   
   

   1. On or about April 29, 1993, CSX filed a Railroad Grade Crossing Application (hereinafter referred to as the "Application"), with the Department. DOT Exhibit 1.

      
      

   2. Pursuant to the Application, CSX sought permission from the Department to close an at-grade railroad crossing (hereinafter referred to as the "Crossing"), located on Country Lane, at railroad mile post SP 664.46 in Santa Rosa County, southwest of Milton, Florida.

      
      

   3. The Crossing has been designated as "339760G" by the Department. The Crossing runs in a northeast-southwest direction.

   4. An "at-grade" railroad crossing is a railroad crossing where the railroad track and a road crossing meet at the same plane or grade.

      
      

   5. On or about September 24, 1993, the Department issued an Intent to Close Permit approving the Application. DOT Exhibit 2. The Respondents timely filed petitions challenging this proposed agency action.

      
      

3. The Crossing.

   
   

   1. Approximately 8 freight trains use the Crossing daily. Additionally,

      2 passenger trains use the Crossing three times a week. The freight trains carry hazardous materials. The evidence, however, failed to prove how often.

      
      

   2. During a twenty-four hour period, approximately 112 vehicles drove over the Crossing on Country Lane.

      
      

   3. There are no flashing lights or gates located at the Crossing. There are no plans in the immediate future to add gates or lights at the Crossing.

      
      

   4. Existing warnings at the Crossing consist of a round, yellow warning sign and a "crossbuck" warning sign just to the north and to the south of the Crossing. These signs, because of trees, are not visible to vehicular traffic on Country Lane until just before reaching the railroad tracks.

      
      

   5. Traveling to the south on Country Lane, there is little visibility of the tracks due to vegetation. Traveling to the north on Country Lane, there is slightly more visibility.

      
      

   6. There are sharp drops in elevation on both sides of Country Lane immediately to the north of the railroad tracks. A vehicle could easily become stuck if it were to drive off the road at this location.

      
      

   7. Passenger trains travel at a maximum speed of 59 miles per hour at the Crossing and freight trains travel at a maximum speed of 49 miles per hour or 25 miles per hour it carrying hazardous material.

      
      

4. The Area Surrounding the Crossing.

   
   

   1. The road that intersects the Crossing is Country Lane:

      
      

      1. Country Lane runs north-south from County Road 191A in the north to Santa Cruz Boulevard in the south.

         
         

      2. Country Lane is approximately 1.1 miles long from County Road 191A to Santa Cruz Boulevard.

         
         

      3. It is approximately .15 mile from County Road 191A to the

         Crossing.

         
         

      4. Country Lane is paved from County Road 191A to just south of the

         Crossing. The rest of Country Lane is a dirt road.

         
         

      5. Country Lane is approximately 12 to 14 feet wide.

         
         

      6. There are approximately 14 homes on Country Lane and two short roads that begin and end on County Lane: Hudson Bend Road and Solor Drive.

   2. Approximately .20 mile south of 191A, Country Lane intersects with Tinsley Road:

      
      

      1. Tinsley Road is a poorly paved county road, approximately 12 feet

         wide.

         
         

      2. Tinsley Road runs east-west from Country Lane in the east to

         County Road 281 in the west.

         
         

      3. There are approximately six houses on Tinsley Road.

         
         

   3. County Road 191A is a two-lane, paved road that runs northeast- southwest. To the northeast, County Road 191A goes to Milton. To the southwest, County Road 191A intersects with County Road 281. County Road 191A is a two-lane, paved road, approximately 20 to 22 feet wide with 6 feet wide shoulders.

      
      

   4. County Road 281 runs north-south, from County Road 191A in the north, to the south over a bridge spanning Mulatto Bay, and then runs to the east to County Road 281A. County Road 281 is a two-lane, paved road, approximately 20 to 22 feet wide with 6 feet wide shoulders.

      
      

   5. County Road 281A runs north-south.

      
      

      1. In the south, County Road 281A intersects with Interstate 10.

         
         

      2. In the north, County Road 281A intersects with County Road 191A. It is also connected to County Road 191A, south of its northern intersection with County Road 191A, by County Road 191B. County Road 281A crosses the CSX railroad line that runs to the Crossing. County Road 281A crosses the railroad line by an overpass.

         
         

5. Access to Country Lane and the Surrounding Area.

   
   

   1. Vehicles, including emergency vehicles, coming from the northeast down County Road 191A may access the fourteen houses located on Country Lane, Hudson Bend Road and Solor Drive by using Country Lane and crossing the railroad at the Crossing.

      
      

   2. If the Crossing is closed, vehicles coming from the northeast down County Road 191A are required to travel to County Road 281, go south on County Road 281 across the railroad to Tinsley Road and then east on Tinsley Road to Country Lane (hereinafter referred to as the "Alternative Route") to access thirteen of the houses on Country Lane, Hudson Bend Road and Solor Drive (the fourteenth house is located to the north of the railroad).

      
      

   3. It is approximately one fourth of a mile from the intersection of County Road 191A and Country Lane around to Country Lane south of the Crossing via the Alternative Route. Driving the speed limit, it takes just over one minute to drive the Alternative Route.

      
      

   4. The Alternative Route can accommodate the additional traffic that would result from closure of the Crossing.

      
      

   5. Country Lane may also be accessed from the south by taking County Road 281A to County Road 281, traveling west and then north to either Santa Cruz Boulevard or Tinsley Road, and then east to Country Lane.

   6. There is a fire station located northeast of Country Lane on County Road 191A. The fire station is approximately 1 mile from the junction of County Road 281 and County Road 191A.

      
      

   7. It takes approximately 1 minute and 36 seconds to drive, at the posted speed, from the fire station to Country Lane. It takes approximately 2 minutes and 30 seconds to drive from the fire station to Country Lane using the Alternative Route.

      
      

   8. If the railroad crossing at County Road 281 were closed, traffic coming from the northeast may return northeast on County Road 191A, east on County Road 191B, south on County Road 281A, west and then north over Mulatto Bay on County Road 281 to Santa Cruz Boulevard or Tinsley (hereinafter referred to as the "Southern Route). From the fire station to Country Lane via this route is approximately 4.7 miles and takes approximately 6 minutes and 18 seconds to drive at the posted speed. From the north of the railroad crossing on County Road 281 via this route is approximately 6.2 miles.

      
      

   9. Emergency vehicles would not be restricted to traveling at the posted speed limits.

      
      

   10. The potential for a vehicle finding access to Country Lane and the surrounding area blocked from the north because of a train halted at the railroad crossing will be increased if the Crossing is closed. Currently, if the Crossing is blocked by a train, vehicles can use the Alternative Route and, if the crossing on County Road 281 is blocked by a train, vehicles can use the Crossing.

       
       

   11. If the Crossing is closed and the crossing at County Road 281 is blocked, vehicles may be required to use the Southern Route. The evidence failed to prove how often this happens. If the Crossing is not closed and both the Crossing and the crossing on County Road 281 are blocked by a train at the same time, there will be no access from the north and vehicles may still have to use the Southern Route. At least one of the Respondents has witnessed both crossings being blocked at the same time.

       
       

   12. Although trains may block the crossing at County Road 281 for 10 to 15 minutes, they do so rarely. It is more likely that traffic may be blocked from

       5 to 10 minutes while train cars are being dropped off at a plant located on a spur of the railroad located to the west of the Crossing.

       
       

   13. If the Crossing is closed and both the crossing at County Road 281 and the bridge on County Road 281 are blocked, residents will not be able to evacuate from Country Lane or the surrounding area. The evidence, however, failed to prove the probability of such an event or the probability that residents would have to be evacuated.

       
       

   14. The evidence failed to prove that, while there may be some inconvenience to the Respondents if the Crossing is closed, the inconvenience will be significant. Two acceptable, alternative routes for access to the area exist and those routes can handle any additional traffic caused by closure of the Crossing.

6. Safety.

   
   

   1. Railroad crossings are potentially dangerous. If an accident takes place at a railroad crossing, the adverse consequences are, more often than not, extremely severe.

      
      

   2. The evidence in this case failed to prove that there have actually been accidents at the Crossing. Comments concerning possible accidents at the Crossing were not made during sworn testimony.

      
      

   3. Because of the conditions at the Crossings (lack of warning devices, excessive vegetation causing lack of visibility, and the poor condition of the road surface), the potential for an accident at the Crossing is high.

      
      

7. Cost Required to Improve the Crossing.

   
   

   1. It would cost in excess of $80,000.00 to add warning lights and gates to the Crossing.

      
      

   2. It would cost approximately $20,000.00 to improve and widen Country Lane.

      
      

8. Emergency Vehicles.

1. Emergency vehicles which may need to access the area south of the Crossings will come from the northeast toward Milton.

   
   

2. If the Crossing is closed, emergency vehicles can use the Alternative Route or the Southern Route. The evidence failed to prove that response times will be significantly impacted by closure of the Crossings.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

4. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   249 (Fla. 1st DCA 1977).

   
   

5. In this proceeding it is CSX, the applicant for permission to close the Crossing, that has the ultimate burden of proof. CSX was required to establish by a preponderance of the evidence that it is entitled to approval of the Application. J.W.C. Co., supra.

   
   

   1. Standing.

      
      

6. The evidence presented by the Respondents who participated in the final hearing proved that they have standing to institute this proceeding.

7. All of those Respondents, except John F. and Katherine H. Edwards, own homes and live on or near Country Lane and use Country Lane and the Crossing.

   
   

8. John F. and Katherine H. Edwards own a home on Santa Cruz Boulevard. Although they now live in Alabama, they continue to maintain the home on Santa Cruz Boulevard.

   
   

9. The Respondents in case numbers 93-6254 (Steve and Laura House), 93- 6257 (Mark W. and Patti Gatewood) and 93-6261 (Jane McMillan Greenwood) did not appear at the hearing and failed to prove their standing to participate in these proceedings.

   
   

   1. Approval or Denial of the Application.

   
   

10. The Department exercises regulatory authority over all public railroad-highway crossings in the State of Florida pursuant to Section 335.141, Florida Statutes.

    
    

11. To carry out its responsibility, the Department has promulgated Rule 14-46.003, Florida Administrative Code, which provides, in pertinent part:

    
    

    1. Purpose. To provide rules for the

       . . . Department . . ., pursuant to Section 335.14, Florida Statutes, for the establishment of uniform standards in the issuance of final orders of the department regarding permits for the . . . 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 of grade crossings, and

       2. Improve rail and motor vehicle operating efficiency.

    2. Opening and Closing Public Grade Crossings. The Department . . . may accept application for the . . . closing of pubic railroad crossings from . . . any railroad operating trains through the crossings; . . . .

    
    

12. In determining whether the Application should be approved, the Department considered: (a) the necessity, convenience and safety of the Crossing to rail and vehicle traffic; (b) whether other routes may be utilized;

    1. the effect of closing the Crossing on rail operations and expenses; and (d) whether excessive restrictions to emergency type vehicles will result from the closure of the Crossing.

    
    

13. The evidence in this case proved that the Crossing is not required: there is an existing alternative route for vehicular traffic which will require an additional one fourth of a mile driving distance.

    
    

14. The evidence also proved that closure of the Crossing will cause some inconvenience to a few of the Respondents. The evidence, however, failed to prove that anyone other than the Respondents who appeared at the final hearing

    would be subjected to any inconvenience or that the inconvenience would be significant. The inconvenience to the Respondents, when weighed against the enhanced safety of eliminating the Crossing, is not significant.

    
    

15. Safety would be enhanced because there is a high degree of danger caused by conditions at the Crossing. The Alternative Route offers a safer route for vehicles because the crossing on County Road 281 does not suffer from the deficiencies of the Crossing.

    
    

16. The evidence proved that the Alternative Route is readily available and will not require a significant increase in driving times.

    
    

17. The evidence failed to prove that there would be a significant effect on rail operations and expenses from closure of the Crossing other than the elimination of potential liability for an accident at the Crossing.

    
    

18. Finally, the evidence failed to prove that the closure of the Crossings will cause an "excessive" restriction to emergency type vehicles.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order

dismissing the petitions in this case and approving the application of CSX

Transportation, Inc.

DONE AND ENTERED this 31st day of May, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

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 31st day of May, 1994.

APPENDIX

Case Numbers 93-6253 through 93-6262

CSX Transportation, Inc. and Mr. Edwards have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Mr. Edwards' Proposed Findings of Fact

1. Accepted in 5 and 9.

2. Accepted in 9.

3. Accepted in 11, 23-25 and 35.

4. Accepted in 10-11, 16, 21, 32, 35-37 and 40-42.

5. Accepted in 38-19 and hereby accepted.

The CSX's Proposed Findings of Fact

1. These paragraphs are a correct summary of events at the final hearing.

2. See 17-35. The last sentence of the first paragraph is not supported by the weight of the evidence. The last two sentences of the second paragraph are not supported by the weight of the evidence.

3. See 29.

4. Not supported by the weight of the evidence.

COPIES FURNISHED:

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0450

Thornton J. Williams General Counsel

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450

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

Haydon Burns Building, M.S. 58 Tallahassee, FL 32399-0458

Stephen H. Shook, Esquire CSX Transportation

Law Department

500 Water Street Jacksonville, FL 32202

Clyde L. & Susan S. Godwin, pro se 3321 Hudson Bend

Milton, Florida 32583

India B. McLeod, pro se 900 N. 21st Avenue Milton, Florida 32583

Earl W. & Zanola R. Gatewood, pro se 1361 Tinsley Road

Milton, Florida 32583

John F. & Katherine H. Edwards, pro se 2401 Old Military Road

Mobile, Alabama 36605

Lucille Williams Gatewood, pro se 5212 Tinsley Road

Milton, Florida 32583

Mary W. Henderson, pro se 3480 Country Lane

Milton, Florida 32583

Clifton D. & Christa Childers, pro se 1013 N. 16th Avenue

Milton, Florida 32583

Steve & Laura House 3251 Country Lane

Milton, FL 32583

Mark W. & Patti J. Gatewood 3361 Hudson Bend

Milton, FL 32583

Ms. Jane McMillan Greenwood 4884 Mulatto Bayou Drive Milton, FL 32583

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: 93-006253

Orders for Case No: 93-006253