STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF MEDLEY, FLORIDA, )

)

Applicant, )

and )

)

FLORIDA EAST COAST RAILROAD CO. ) CASE NO. 76-673

)

and )

) STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

After due notice, a public hearing was held before the Division of Administrative Hearings duly designated Hearing Officer, James E. Bradwell, on November 18, 1977, in Miami, Florida. Respondent, Florida East Coast Railway (FECRR) timely filed a "Proposed Examiner's Report and Order" on December 30, 1977, which has been duly considered in the preparation of this Recommended Order.

APPEARANCES

For Petitioner: Stephen Lubow, Esquire

City Attorney of Medley, Florida 819 Dupont Plaza Center

Miami, Florida 33131

For Respondent: Philip S. Bennett, Esquire

Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

John W. Humes, Jr., Esquire Attorney for Respondent

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

By application, the City of Medley, Florida, (Petitioner or Applicant herein) seeks a permit to open an at-grade crossing in the vicinity of Northwest 74th Avenue in the town of Medley, Florida by new roadway construction.

The City of Medley is an incorporated town which is primarily industrialized with small specialty shops. The exact location of the crossing that the Applicant here seeks is at Northwest 74th Avenue, between 74th and 77th Streets. 74th Avenue in the area involved here is a two lane street which

serves the local industries in Medley. Approximately ten trains daily travelling at speeds of approximately ten (l0) miles per hour use the railroad crossing here involved.

The area which would be served by opening this crossing is triangularly shaped and bounded on one side by the Palmetto Expressway, by the lead track to the railway entering Maule Industries on one side and by the lead track going into Vulcan Materials on the other side. As stated, the area is strictly industrial with approximately four hundred (400) employees and numerous warehouses. The streets are heavily travelled by trucks entering the area. The two tracks above referred to serving Maule and Vulcan have been in place for more than twenty (20) years and pre-date almost all of the present industrial development.

The application as originally submitted on December 31, 1975 reflected that the cost of installation charges were to be borne by the Applicant however, at the outset of the hearing, the Applicant moved to amend its application to include taxing the installation costs to FECRR. Both the Applicant and the Respondent, FECRR called five witnesses each. A summary of witnesses testifying on behalf of the Applicant follows. During July, 1976, while employed by American Packing Corporation, Mario Riveria was summoned to take an employee who cut his finger to the hospital. Messr. Riveria waited approximately four to five minutes because a train blocked the rail crossings at 74th and 72nd Avenues. Messr. Riveria took the injured employee to Palmetto General Hospital which is about equal distance to Hialeah Hospital from American Packing Corporation's plant which is located at 7685 Northwest 83rd Street. Arthur Hibbert, a driver engineer for the City of Medley testified that the fire department's response time has increased, at times, up to approximately three minutes when trains block the existing crossing on 72nd Avenue.

Toby Wilson, Police Chief for Medley since 1968, testified that the Police Department frequently encounter problems in crossing into the so called industrial "triangle" because all traffic is funneled into the area of 74th avenue. He also indicates that the Department's response time is increased by approximately three minutes because there is no crossing at 74th Avenue, the proposed crossing location. He expressed concern over the heavy congestion in the business district and the problems police units encounter when trains are blocked below the so called "southern corridor". During cross examination he testified that during his tenure as a police chief, he has personally observed blockages on approximately 25 occasions in segments lasting up to, in his estimation, 15 minutes. In this regard, it was brought out that the City of Medley has an ordinance which prohibits trains from blocking crossings for more than five minutes and also that during emergencies, the yardmaster could be called to clear crossings. Later during his testimony he recalled only four instances of train blockages in the "triangle" during the past ten years. The police department receives approximately two calls per day in the "triangle".

The Petitioner-Applicant introduced approximately 31 letters from either employees of industries in the Medley "triangle" or from city officials indicating a desire to open the planned crossing since it would provide a more direct route into the "triangle" and in some instances shorten the response time for the emergency and/or fire vehicles.

Mayor Emmett Chaffin, whose tenure dates from 1966, testified respecting numerous complaints received from persons who had been stalled at the railroad crossings trying to enter the "triangle". Mayor Chaffin advised that the subject railroad tracks which serve. as a spur for a gravel and rock pit owned by Vulcan Materials, were in existence when the vast majority of businesses

located in the Medley area. Respondent, FECRR opposes the application citing alleged detrimental effects that would flow to the railroad's operation and one of its prime shippers Vulcan Materials if the proposed crossing is opened. Also pointed out was the fact that alternative methods were available which were better suited to provide access to the "triangle" area. In this regard, Joseph Rice, a registered engineer and planner was engaged by FECRR to examine the street layouts for the subject area. Messr. Rice testified that most of the blockages in the area were created by truckers maneuvering into the dock areas of the various industries served by the areas two laned streets. One alternate route suggested was the opening of an access road parallel to the railroad between 72nd Avenue and 77th Street. Messr. Rice pointed out that the fire company at 36th Street and Milan Dairy Road which serves the Medley area could use this access as could other emergency vehicles. Also by designating that access road to be used exclusively by emergency vehicles, their response time would be improved. Messr. Rice testified that during his study of traffic patterns, he noticed that approximately two-thirds of the traffic goes north and he observed trucks blocking the area for periods as long as two minutes.

Sam Ricks, an employee of Respondent, FECRR, and presently a trainmaster has been involved in claims processing for the railway in excess of five years. Photos introduced into evidence reveal that trains entering the planned crossing would have no view of northward traffic and that a storage track would have to be shortened to avoid accidentally signalizing the crossing switch. See Respondent's Exhibits C, D, E and F. He also expressed FECRR's need for the entire track as presently constructed due to the heavy volumne of business generated by Vulcan Materials.

Bill H. Bass, area Manager for Vulcan in charge of sales and production, testified that if the pending application is granted, Vulcan's operations would be extremely hampered and there would be no way to get empty rail cars in and out of the loading area during peak periods since at times the company uses up to 250 cars per week. Frank Steward, an employee of FECRR and presently a section supervisor who is familiar with railroad protective devices for at-grade railroad crossing opposes the present application on the ground that there is a visibility problem at the planned crossing and that if in fact a crossing is granted, he recommended flashing lights, T-bells, gates and cantilevered signalization.

Based on the above facts, I conclude that the application here is not in the best interest of the Applicant, the public or the manufacturers situated in this area as there was evidence that vehicular traffic could not be seen by the train engineers approaching the tracks from the north; that the response time would not be decreased significantly or that the needs of the public would be better served by the grant of this application. While it is true that the response time would be shortened for emergency vehicles there is presently available alternative routes for entering the area; procedures are available for clearing the traffic during emergencies which based on the evidence, occur in frequently and there are other alternative areas, as suggested by the Respondent, FECRR, which would provide equal if not better access to the area with no detriment to one of the major industries in the Medley area.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

2. The parties to this proceeding were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

3. The opening of the subject railroad crossing as applied for is not needed to increase the area's vehicular traffic safety, nor would the public interest be better served since the evidence shows that increased risks would be involved by the opening of the subject crossing. One of the purposes of Section 338.21, F.S., which grants the Department of Transportation regulatory authority over public railroad crossings is to reduce the hazard inherent with highway traffic that crosses railroads. With this in mind, granting the subject application would not reduce this hazard but could potentially increase it and further, there were other alternative means which if utilized, would be less detrimental to all parties involved here both in terms of costs and safety.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I recommend that the application of the Petitioner-Applicant for the subject railroad crossing at Northwest 74th Avenue, between 74th and 77th Streets in the City of Medley, Florida, be DENIED.

RECOMMENDED this 16th day of January, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Stephen Lubow, Esquire

City Attorney of Medley, Florida 819 Dupont Plaza Center

Miami, Florida 33131

Phillip S. Bennett, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

John W. Humes, Jr., Esquire Attorney for Respondent

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

Docket for Case No: 76-000673

Orders for Case No: 76-000673