A hearing was held in this case by video conference on May 2, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: Albert S. Johnson
Gibsonton Area, Inc.
For Respondent: Steven H. Shook, Esquire CSX Transportation Law Department
Inc. CSX Transportation, Inc.
For Respondent: Charles G. Gardner, Esquire Department of Department of Transportation
The issue for consideration in this case is whether the at- grade railroad crossing over the CSX railroad tracks located at Mottie Road in Gibsonton should be closed.
On April 25, 1996 the Department of Transportation issued an Intent to Issue Permit to CSX Transportation, Inc. to close a public at-grade railroad crossing in Gibsonton, Florida. By the terms of the published notice, the Department advised concerned parties of their right to file a request for a hearing on the proposed permit, and consistent therewith, on March 21, 1996, Petitioners requested a formal hearing. This hearing ensued.
At the hearing, Petitioners presented the testimony of Albert E. Johnson, its qualified representative; and Robert A. Wood and Martha Jean Johnson, both residents of Gibsonton. CSX Transportation, Inc. (CSX) presented the testimony of Jon W. Wollenzein, a public projects engineer for the railroad, and introduced CSX Exhibit One. The Department of Transportation (Department) presented the testimony of Jack W. Webb, a registered professional engineer with the Texas Transportation Institute and expert on railroad hearings and safety of crossings. The Department also introduced Department Exhibits One through Three.
No transcript of the proceeding was filed. No court reporter was present for the hearing, but a video tape was made
of so much of the video conference as originated in the Tampa studio. The audio portion of the tape contains those matters originating in both locations.
Subsequent to the hearing, only counsel for the Department submitted Proposed Findings of Fact and these were carefully considered in the preparation of this Recommended Order.
At all times pertinent to the issues herein, the Respondent, CSX Transportation, Inc. operated a railroad running generally north and south through the city of Gibsonton, located in Hillsborough County, Florida. The Department of Transportation is the state agency responsible for the licensing and permitting of at-grade railroad crossings located on the public roads of this state. The Petitioner, Concerned Citizens of Gibsonton Area, Inc. is a private citizens group whose purpose is the betterment of living conditions in the community.
The at-grade crossing in issue is located where Mottie Road crosses the CSX tracks in Gibsonton. On January 26, 1996, CSX submitted an application to the Department to close the Mottie Road crossing. That crossing was one of three crossings proposed for closing. Pursuant to the requirements of the Department, a public hearing was conducted on the closings at which the railroad presented its proposal and affected citizens were given an opportunity to submit matters in opposition to the closings. On April 25, 1996, after a review of the matters
submitted by the applicant and by the public at the hearing held for that purpose, the Department issued the instant Intent to Issue permit.
There is only one track at the Mottie Road crossing. Mottie Road is paved and is approximately twenty feet wide at the crossing. It supports an average daily traffic of approximately
434 vehicles per day. It is, primarily, a rather short residential street though it does carry some commercial traffic. It runs east and west. One end of Mottie Road ends where it intersects with Roosevelt Road on the east and the other ends at US Highway 41 just west of the crossing. The crossing has no active signal, but motorists are advised of the crossing by cross-bucks at each side.
Nundy Avenue is the east-west roadway just north of Mottie Road. Whereas Mottie Road runs for only several blocks, Nundy Avenue runs from Lula Street, a north-south street west of US Highway 41, east to its intersection with East Bay Road, almost out to Interstate Highway 75. Nundy Avenue is the first east-west thoroughfare south of Gibsonton Drive, which intersects with Interstate Highway 75 to the east of town. It is primarily a two lane residential road. The Gibsonton shopping area is located primarily on Gibsonton Drive east of US Highway 41.
The crossing at Nundy Avenue is presently guarded by cantilever flashing lights. These lights are scheduled to be upgraded to flashing lights and gates sometime during 1997. The
average daily traffic count on Nundy Avenue is 2,948 vehicles, including 21 school busses. Nundy Avenue is rated for 5,000 vehicles per day. It can handle without difficulty any through traffic diverted from Mottie Road by virtue of the proposed closing of the crossing.
Petitioners object to the closing of the Mottie Road crossing for several reasons, the primary of which is safety. According to Operation Life Saver, a non-profit organization, eighty percent of car/train accidents are due to driver error - stupidly driving across the tracks. Mr. Johnson, a member of the Petitioner and its spokesman at the hearing, contends that closure of the Mottie Road crossing will stop the crossings but it will also increase traffic at other crossings which will increase driver frustration.
Mr. Johnson notes that the wreck of a 100 car train at the crossing at Pennsylvania Street, just south of the Alafia River not far north of town, would block traffic down through the Nundy Avenue crossing, but would not block the Mottie Road crossing. In the event Mottie Road were closed, however, that same wreck would cause an increase in emergency response time by eight to ten minutes. This could result in elderly people residing on Mottie Road who need life support having no way to get out in the event Roosevelt Road were also blocked by an accident. The likelihood of this combination of events is remote. The closest emergency medical service facility is
located at the fire station on Gibsonton Drive. If that one was blocked due to a closing of Mottie and Roosevelt, the next closest facility is in Riverview, north of the Alafia River, or at Apollo Beach, six or seven miles south on US Highway 41.
Mr. Johnson contends that safety is not the real reason CSX wants to close the crossing at Mottie Road. He claims the purpose is to save CSX money. No evidence was produced to support that contention however.
Mr. Johnson also questions the accuracy of the traffic counts and the other statistics weighed by the Department in its evaluation of the application. The crossings were evaluated in the summer months when the population of Gibsonton is approximately 7,000 people. In the winter months of December through early March, the population doubles to almost 14,000 people, he claims. A large segment of this increase is due to the winter influx of carnival people who have large trucks and show equipment which requires a larger turning radius than a semi-trailer. As many as thirty large rigs come and go in that area each season. He asserts that Nundy Avenue is dangerous for trucks to use because the ditch banks beside the road are narrow and deep. Turning onto Mottie Road is easy. Turning onto Nundy Avenue is not. Again, no evidence was presented in support of this contention.
Another objection to the closing of Mottie Road is raised by Robert A. Wood, a senior deacon at the neighborhood
church. He contends that the closing will interfere with business in the church located at the corner of Church Street and Payne Avenue, currently accessible to a large portion of the congregation who come to church through Mottie Road. Echoing the concern of Mr. Johnson, Mr. Wood cites the occurrence of an accident at Nundy Avenue and Roosevelt Road, and contends that such an accident would make it impossible for people to get out if Mottie Road were blocked.
Mr. Wood also notes that the railroad bridge over the Alafia River is low and is opened three or four times a day.
When trains are stopped south of the bridge because of this, they block all crossings north of Mottie Road.
Mr. Wood opines that Nundy Avenue could not handle the extra traffic caused by the closure of Mottie Road without substantial additional modification of its intersection with US Highway 41. Though Mr. Wood is a retired engineer, he has no expertise in traffic management, and his opinions are based primarily on common sense as opposed to engineering practice.
A substantial wave of objection to the closure by the residents in the area has been reduced to writing and submitted to the Department and to CSX though it was not presented at hearing. According to Mrs. Martha J. Johnson, vice-president of Concerned Citizens, these concerns were memorialized and furnished to Mr. Webb who was the Department’s point man at the time. Whereas the Department has been responsive, however, the
railroad has not. Ms. Johnson is of the opinion that had CSX been more responsive to the community’s expressed concerns, the matter could have been discussed and resolved in an alternative manner.
The controversy has come about because of CSX’s attempts to conform to the goals of the Federal Railroad Administration’s stated goal of closing twenty-five percent of all at-grade crossings by the year 2,000. In 1973, the federal Highway Safety Act emphasized crossing accidents and mandated the identification of hazardous crossings to be corrected or closed. The Act provided money to the states to fix or close these crossings, but these funds are not unlimited.
From 1973 to the mid-1990’s the fatality rate dropped by fifty percent as a result of these efforts, but now appears to have leveled off. This has led to the conclusion that lights and gates are not the whole answer. Crossings have to be converted to overpasses or closed. Mottie Road is not active enough a road to justify an overpass, and in addition, the physical layout of the area will not support an overpass. As a result, the logical solution is closure. A legislative study done in 1994 revealed that there is an excessive number of crossings and recommended closing some of them. The instant closing proposal is a part of that effort.
It costs the railroad approximately $800 per year to maintain this crossing. If signals were installed, (flashing
lights), the yearly maintenance cost would increase to $1,500, and the installation of the lights and gates would cost an initial $100,000 to 150,000.
Mr. Wollenzein, the railroad’s public projects engineer, looks at several hundred crossings per year from the standpoint of number of vehicles, speed of vehicles, type of vehicles, train traffic, train speed and the distance of one crossing to the next closest crossing. In the instant case, the vehicular traffic amounts to slightly under 500 vehicles per day, and there are five trains per day through the crossing each way. Trains are limited to a maximum speed of 40 mph through the crossings.
In Mr. Wollenzein’s opinion, safety of rail and vehicular traffic would be enhanced if this crossing were closed. Closure would be the absolute prohibition of traffic through the crossing and without traffic, there can be no accidents. He drove the area and concluded there were several practical alternative routes which would compensate for the closing of the Mottie Road crossing. Though he cannot be certain closure would not interfere with emergency vehicle service, he does not believe it would. The fire department is located on Gibsonton Drive, east of US 41, co-existing with the EMS facility.
Support for the closing also comes from Jack Webb, formerly with the Department and now a transportation engineer employed by the Texas Transportation Institute. Ninety percent
of his work deals with railroads and crossing devices, tying those signals into the traffic system. Mr. Webb looked at the Mottie Road crossing site on several occasions, the first time being in September 1995 when some Department employees were evaluating potential closure sites. The Department decision to permit closure was made only after a thorough study of the site and public hearings to afford the public an opportunity to submit matters relating to the proposed action.
When the Department contemplates closing an existing crossing, it considers alternate access, traffic, warning devices and the like. Based on the information he was able to gather on this crossing, Mr. Webb concluded there was a viable alternative to the crossing at Mottie Road; the one at Nundy Avenue. The Mottie Road crossing is a timber crossing which is in fair condition. There was no significant rust on the rails nor cracking of the timbers. There was, however, some minor cracking with wear on the timbers.
Nundy Avenue, he opines, can handle from four to five thousand vehicles per day, and in his opinion, closing Mottie Road would not overtax Nundy Avenue. Mr. Webb also calculated the additional response times which would be occasioned by closing Mottie Road. According to his figures, EMS support from the Gibsonton Drive fire station would come off Nundy Avenue. Police response time to a critical point on US Highway 41 just east of the crossing on Mottie Road was 1.5 additional minutes
from the south, and 45 seconds from the north. A critical point is that point in the neighborhood where additional response time would be the longest.
Mr. Webb also checked with EMS, the fire department and the police about response times. The Hillsborough County Sheriff’s Department estimated that closure of the Mottie Road crossing might slow up their response times slightly from the south but not when coming from other directions. A fire department official opined that additional response time from the Gibsonton and Riverview stations would be nil, and that there would be an additional three to four minutes to come from Summerfield. EMS officials at the Gibsonton station indicated closure would have no impact upon their operation. The EMS official at the central dispatch office indicated the potential for detriment to their operations would be low even from the other stations. Mottie Road is not on a school bus route and bus transportation was not likely to be affected.
At the public hearing on this matter some objections were voiced. As a result, the Department reevaluated all 3 crossings proposed for closing. On two of the three, valid arguments against closure were propounded, but neither related to Mottie Road. In the case of Mottie Road, the railroad agreed to construct a pedestrian crossing there even if the vehicle crossing were closed.
The Department also considered the issue of turning
radii for trucks as encouraged by the public comment. After visiting the site on several different occasions, and measuring the turning radius availability for trucks with fifty feet between axles, Department officials identified but one problem area located at the intersection of Nundy Avenue and Roosevelt Road, and as a result, indicated that the Department would widen the road there to accommodate the trucks’ turning radii without the need to acquire additional property.
The Department also found that there is a shopping center on US Highway 41 about one-half mile south of Mottie Road. The Post office is located there as well, but closing Mottie Road would not have any major impact on access to that facility.
Based on all the above, Mr. Webb concluded that closure was appropriate. It is so found.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 335.141, Florida Statutes, grants the Department of Transportation regulatory authority over all public railroad/highway grade crossings in the state and requires it to adopt a program for the reduction of hazards at such crossings. Consistent therewith, the Department developed and maintains continuing physical, usage and economic records regarding each
at-grade crossing and the roadways each crossing serves. The
purpose of closing a crossing and consolidating road traffic is to eliminate exposure of at-grade railroad traffic accidents.
Rule 14-46.003, Florida Administrative Code, also addresses the problem of maintenance costs and requires a railroad or government entity to be legally responsible for the maintenance of each crossing. As a part of the program adopted by the Department, it is required to maintain a formal, continuing crossing closure program. At Rule 14-46.003, the Department is charged to develop uniform standards whose basic objectives are to reduce the frequency and severity of accidents at grade crossings, and to improve rail and motor vehicle operating efficiency.
Subsection (3)(b) of the aforementioned rule establishes the criteria to be applied in considering the closing of public grade crossings. These include:
Necessity, convenience and safety effects upon rail and vehicle traffic.
Utilization of remaining routes where practical.
Effect of closing on rail operations and expenses.
Excessive restriction to emergency type vehicles resulting from closing.
Subsection (3)(c) of the rule, relating to closing of public grade crossings by the Department, mandates the Department to:
... initiate and maintain a formal, continuing crossing closure program based on analysis of engineering and safety factors and minimal negative impact on operating efficiency to vehicle and rail traffic.
Petitioners have not clearly demonstrated that the closure of the Mottie Road crossing would have anything but a minimal effect on the residents of the area, or that any of the potential negative impacts cannot readily be compensated for by the use of alternative available routes in and out of the area.
On the other hand, the Department has shown that the closing of the Mottie Road crossing is consistent with and supportive of the state’s policy of improved safety at railroad crossings by eliminating, where reasonably convenient, the interaction of vehicular traffic with rail traffic. The closing is not unreasonable nor seriously inconvenient given the minimal distance and time requirements of the alternate routes proposed by the Department. By the same token, the closing does not significantly impact emergency or school bus traffic.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order granting permission to CSX Transportation, Inc., to close the at grade vehicular crossing over its track at Mottie Road in Gibsonton, subject to the railroad’s agreement to maintain a pedestrian crossing there and to upgrade the vehicular crossing at Nundy Avenue.
Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1997.
Albert S. Johnson Qualified Representative Jeanie Johnson
Gibsonton Area, Inc.
Steven H. Shook, Esquire CSX Transportation, Inc. Law Department, J - 150
Charles G. Gardner, Esquire Department of Transportation Mail Station 58
Ben G. Watts, Secretary Department of Transportation Attention: Diedre Grubbs Mail Street 58
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
