STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARVIDA CORPORATION and ) GENERAL PLASTICS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1451

) DEPARTMENT OF TRANSPORTATION ) and SEABOARD COAST LINE RAILROAD ) COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 3, 1977. Respondent Seaboard Coast Line Railroad Company (Seaboard) appeared through Mr. J. J. Vereen. The other parties were represented by counsel:

For Petitioners: Mr. James M. McCann, Jr., Esquire

Mershon, Sawyer, Johnston, Dunwody & Cole 1600 Southeast First National

Bank Building

Miami, Florida 33131

For Respondents: Mr. Phillip Bennett, Esquire

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32304

Petitioner Arvida Corporation submitted to respondent Department of Transportation (DOT) a railroad grade crossing application, dated May 3, 1977, which sought to upgrade an existing private crossing in Dade County, Florida, to a public crossing. On June 23, 1977, respondent DOT's railroad coordinator, Kenneth D. Hood, approved the application. A hearing was subsequently scheduled, pursuant to Section 338.21(5), Florida Statutes (1975). After the final hearing had begun, petitioner General Plastics Corporation was permitted to intervene as a party to the proceedings.

FINDINGS OF FACT

1. Arvida Corporation owns a tract of approximately 35 acres in Dade County which it has agreed to sell to General Plastics Corporation. General Plastics Corporation proposes to construct a facility 80,000 square feet in area at which 100 to 125 persons would he employed in the manufacture of plastic bags. Raw materials would be delivered by rail; the finished product would leave the factory by truck.

2. Respondent Seaboard maintains a main rail line bordering the proposed plant site. Scheduled freight trains traverse this line daily, one northbound, one southbound. At the height of the vegetable harvest in January and February, there are additional, unscheduled, freight trains, one in each direction each day. In addition, miscellaneous trains, called work extras, use the track. At all pertinent points along the track, the trains' speed limit is 25 miles per hour. If the track should be upgraded, the speed limit might be raised to 35 miles per hour.

   
   

3. Cars and trucks can cross this track at two places in the vicinity of the proposed plant site. Southwest 144th Street crosses not only the main track but also spurs leading to property of Oolite Industries, Inc. This crossing is a private crossing, which the general public has no legal right to use, but which Oolite Industries, Inc. uses under an agreement with Seaboard. In practice, the gates designed to block public access to this crossing are seldom closed. The second crossing, also a private crossing, is the subject of the present application. Florida Power & Light Company has the contractual right to cross Seaboard's track at the intersection of the track with Southwest 127th Avenue, Gates crossing Southwest 127th Avenue perpendicularly on either side of the track are ordinarily closed and locked.

   
   

4. Seaboard's main track runs southwesterly-northeasterly and intersects, at an angle of approximately 30, Southwest 127th Avenue, which runs north-south. Some distance southwest of the intersection, two spur lines leave the main line in a more westerly direction. Seaboard uses these spur lines to service Oolite Industries, Inc. A train standing on the main track could obscure a train on either of the spur lines from the view of a motorist on Southwest 127th Avenue south of the crossing. At the crossing itself, a driver, whether northbound or southbound, would have to look back over his shoulder in order to see down the track.

   
   

5. Southwest 127th Avenue has been designated as an arterial roadway in Dade County's master land use plan. Access to General Plastics Corporation's proposed plant by way of Southwest 127th Avenue would allow trucks to reach the plant from the turnpike by way of Coral Reef Drive instead of having to drive several miles through residential neighborhoods to Kendall Drive. Using the Southwest 144th Street crossing is not a viable alternative because a safe roadway could not be constructed from the crossing to the proposed plant site, on account of the proximity of the track to water and to towers supporting a power transmission line.

   
   

   CONCLUSIONS OF LAW

   
   

6. Inasmuch as the "[c]onversion of private crossings to public use constitutes opening a new public crossing," Rule l4-46.03(2)(a), F.A.C., upgrading the Southwest 127th Avenue crossing would require the installation of "reflectorized railroad crossbuck[s]," Rule 14-46.03(3)(a), F.A.C., and "roadside flashing lights and bells," Rule 14-46.03(3)(b), F.A.C. In addition, "[a]utomatic gates in conjunction with flashing lights," Rule 14-46.03(3)(d) , F.A.C., should be installed, because there are "[m]ultiple tracks . . . adjacent to the crossing which may be occupied by a train so as to obscure the movement of another train approaching the crossing." Rule 14-46.03(3)(d)(3), F.A.C.

   
   

7. Petitioners established the necessity and convenience of the proposed crossing. The evidence demonstrated the need for signalization prescribed by Rule 14-46.03, F.A.C., which, if installed, would ensure the safety of the crossing.

8. Private parties like petitioners may apply for the opening of a public railroad crossing "provided that there is in existence an agreement with the governing body to assume jurisdiction as a public crossing. "Rule 14-46.03(2),

F.A.C. No such agreement was proven to exist in the present case, but the parties stipulated that the recommended order could be framed on condition that such an agreement be reached.

Upon consideration of the foregoing, it is RECOMMENDED:

That, in the event petitioners, or either of them, enters into an agreement with the Metropolitan Dade County Commission or some other appropriate governing body, by which the Commission or other governing body assumes responsibility for maintenance of signals at the crossing, and in the event petitioners or either of them finances the installation of crossbucks, bells, flashing lights and automatic gates at the crossing, the existing private crossing on Southwest 127th Avenue, 190.5 feet northwest of milepost SX-1053, should be opened to the public for their use.

DONE and ENTERED this 14th day of February, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Mr. James M. McCann, Jr., Esquire Mershon, Sawyer, Johnston

Dunwody & Cole

1600 Southeast First National Bank Building

Miami, Florida 33131

Mr. Phillip Bennett, Esquire Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

Mr. J. J. Vereen, Esquire Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida

Docket for Case No: 77-001451

Orders for Case No: 77-001451