STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNTREE DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1351

)

FLORIDA EAST COAST RAILWAY ) COMPANY and FLORIDA DEPARTMENT ) OF TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

After due notice a public hearing was held before Delphene Strickland, Hearing Officer, Department of Administration, Division of Administrative Hearings, on November 12, 1975, at 2:00 p.m. at the Brevard County Branch Courthouse, 50 South Neiman Avenue, Melbourne, Florida.

APPEARANCES

For Petitioner: RONALD C. LAFACE, Esquire

Post Office Box 1752 Tallahassee, Florida 32302

For Respondent: PHILIP S. BENNETT, Esquire Department of Office of Legal Operations Transportation Department of Transportation

Haydon Burns Building Tallahassee, Florida 32304

For Respondent: CHARLES B. EVANS, Esquire East Coast One Malaga Street

Railway Florida East Coast Railway Co.

Company St. Augustine, Florida ISSUE

Whether a permit should be granted for an at-grade public railroad crossing in the vicinity of Florida East Coast Railway Company Mile Post 182 + 4900' + and a proposed road in Brevard County near Bugbee.

FINDINGS OF FACT

1. The Notice of Hearing was entered into evidence and said notice was amended to reflect that the distance of an existing crossing north of the proposed crossing was 2,208' + north rather than 1,500' + north. The application was also changed to reflect that the proposed roadway was to extend the limits of a right of way to 120' instead of 100'. The change would place the mile post at a slightly different location.

2. Upon examination of the area and taking testimony from the three attorneys involved in this hearing, it is the findings of this Hearing Officer that the change in location and the change in the proposed roadway is not of sufficient consequence that the hearing should have been postponed and re- noticed. Inasmuch as the parties directly involved were present, the owners of the railroad were represented, the owners of the Petitioner corporation were represented, there were representatives from the County and from the Florida Department of Transportation. A re-notice with the minor changes in location and in the width of the right of way would have been sent to the same representatives. The Notice of Hearing met the requirements of notice of public hearing.

   
   

3. Petitioner Suntree Development Corporation is proposing to construct a connector road between Wickham Road and U.S. 1 approximately 2,208' south of an existing two-lane signalized (warning bells, lights, and gates) road crossing on Pineda Avenue in south Brevard County, Florida. The proposed road is to be

   four-laned with 120 foot right of way including a 20 foot medium strip. The road would be an access between U.S. 1 and the Suntree Community, a new community on approximately 2,800 acres of land which is predicted to have approximately 35,000 to 40,000 people after total development which is estimated to be completed within a 15 year period. The road would be a limited access with acceleration and deacceleration lines on U.S. 1 with an estimated total anticipated average daily traffic of from 23,000 to 60,000 trips per day. The proposed crossing involves a Type IV cantilevered signalization with bells, flashing lights and gates to be activated by trains. Cost of signalization and maintenance is to be borne by the Suntree Development Corporation.

   
   

4. Petitioner is the primary owner of all the lands involved, but does not own all of the right of way needed to construct the crossing. Building is presently limited to a country club, sewage treatment plants, about a mile of roadway and two single family homes under construction and plans for the construction of some forty homes within the next few months.

   
   

5. The proposed crossing was approved by the Brevard County Commission with the understanding that the crossing at Pineda Avenue would not be closed.

   
   

6. The Florida East Coast Railway track in this area is a single track with 18 through freight trains a day which travel about 60 m.p.h. at the proposed crossing location. Two local freights move at unscheduled times across the railroad tracks. The tracks in the vicinity of the proposed crossing is nearly straight. The Florida East Coast Railway Company owns the right of way over the tracks and opposes the opening of another crossing in such close proximity to the crossing at Pineda Avenue, at this time.

   
   

7. Storage capacity or storage area is the area in which cars can stand while awaiting clearance to proceed. The proposed road will contain 1,800' of storage area with 850' on the Wickham Road side and 950' on the U.S. 1 side. Using the average daily traffic figure when the community is developed, as calculated by Petitioner, U.S. 1 would be blocked in 3.28 minutes. Using the average daily traffic figures when the community is developed, as calculated by the Florida Department of Transportation, U.S. 1 would be blocked in 1.27 minutes.

   
   

8. The Florida Department of Transportation recommends that an overpass be constructed rather than the at-grade crossing.

9. The Hearing Officer further finds:

   
   

   1. The Pineda Avenue crossing can serve the vehicular traffic demand at present;

   2. Petitioner's plans for development, if realized, will demand another railroad cross- ing to serve the community;

   3. The proposed at-grade crossing is in such close proximity to U.S. 1 that it would be hazardous to vehicular traffic on U.S. 1 and the proposed Suntree entry road when the community is developed.

      
      

      CONCLUSIONS OF LAW

      
      

10. Section 338.21, Florida Statutes, provides in part that the Department of Transportation has regulatory authority over all public railroad crossings in this state. One of the purposes of this law is to reduce the hazards inherent with highway traffic crossing railroads. At the present time there is no need for another crossing to serve the Petitioner. When the community is more fully developed there will be a need for another railroad crossing to serve the community. The proposed crossing is so located that it would be a hazardous crossing at the time that there is a need for a second crossing to serve Petitioner's corporation.

RECOMMENDED ORDER

Deny the petition without prejudice to submit another application. DONE and ORDERED this 28 day of January, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Philip S. Bennett, Esquire Counsel for DOT

Charles B. Evans, Esquire Counsel for SCLRC

Ronald C. LaFace, Esquire

Counsel for Suntree Development Corp.

Docket for Case No: 75-001351

Orders for Case No: 75-001351