STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: )

Application of SOUTHEAST PARTNERS, ) a Florida partnership, by FLAQUAD, ) INC., its managing partner, to )

open an at-grade crossing in the ) CASE NO. 78-713 vicinity of Mt. Dora, Florida, at )

a point 1,202 feet west of Mile- ) post ATA-794 across Seaboard Coast ) Line Railroad Company track. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, hearing was held before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, at the Department of Transportation District Office, 719 South Boulevard, DeLand, Florida, on May 31, 1978, at 2:00 P.M.

APPEARANCES

Philip S. Bennett, Esquire Department of Transportation

John T. Alderson, Jr., Esquire Seaboard Coast Line Railroad Company

James F. Garner, Esquire

for the Applicant SOUTHEAST PARTNERS Timothy A. Burleigh, Esquire, Protestant

Frank W. Clifton, City Clerk City of Mount Dora, Florida

ISSUES

The granting or denial of a permit to open a public at-grade crossing as provided by Section 338.21, Florida Statutes, 1977.

FINDINGS OF FACT

1. The Applicant petitions for a public at-grade crossing constructed in the vicinity of Mt. Dora, Florida, and 1,202 feet west of Milepost ATA-794 across the Seaboard Coast Line Railroad Company tracks. The purpose of this proposed crossing is to give public access from State Road 500, also known as Old U.S. Highway #441, to a shopping center, said shopping center containing a Publix Super Market, an Eckerd Drugs and a number of other retail stores to serve the public needs of Mt. Dora; all of the parties hereto having stipulated to the need for said crossing for public access to the shopping center, as the Applicant has no other means of ingress and egress to the shopping center which is completely constructed and ready for opening. The proposed crossing shall be

   a four-lane drive way, 64 feet in width, with two 24 foot paved access roads and a 16 foot median in the center. There are no permitted public at-grade crossings in the immediate vicinity; however, there are existing private grade crossings on both the east and west boundary of the shopping center which are used by the public. The existing grade crossing on the east is 787 feet from the proposed crossing, being DOT crossing #621-816X; the grade crossing on the west is 430 feet from the proposed crossing, being DOT crossing #621-818L. The Applicant has agreed that the only public access to the shopping center would be across the subject proposed public at-grade crossing and the public and the employees of the Applicant would be prevented from crossing the at-grade crossings on the east and west of the property by a chain-link fence to be constructed across the paved access roads that could allow traffic to use the two existing private at-grade crossings. The chain-link fence on the east side would be solid with no openings; the chain-link fence on the west side would contain an 8 foot gate which would be locked. The sole purpose of the gate would be to provide emergency vehicle access to the city of Mt. Dora for fire trucks, police or other emergency vehicles should the necessity arise for such access. The public would be unable, except in an emergency situation, to obtain access to the shopping center by using the existing private at-grade crossings to the east and west of the proposed public at-grade crossing. Applicant has shown that the shopping center is virtually complete and ready for opening and that there is an economic need and public necessity for said shopping center as shown by the market surveys done by the Applicant, by Publix Super Markets and Eckerd Drugs, and that it would work an economic hardship on the Applicant and deprive the citizens of Mt. Dora from the use of said shopping facilities if the public at-grade crossing is delayed in opening. It has been determined by the Secretary of the Florida Department of Transportation that the immediate installation of the signals called for herein would adversely affect the scheduled installation of signal improvements at grade crossings deemed to have a higher statewide priority. The Applicant has agreed to provide two flagmen to be located at each of the paved entranceways to the proposed at-grade crossing to prevent traffic from entering or leaving the shopping center during train movements. Said persons shall be on duty between the hours of 2:00 P.M. and 8:00 P.M. or dusk, whichever occurs first, which are the hours of train movement across the proposed public at-grade crossing, there being at this time 3 trains per week, resulting in 6 movements over the proposed new public at-grade railroad crossing, with no night train movements and a train speed of 30 miles per hour. Further, said guards or flagmen shall have available to them a manual switch to control the vehicular traffic light on State Road 500, also known as Old U.S. 441, to prevent traffic movement while trains are crossing. The Seaboard Coast Line Railroad has stipulated that they will flag the proposed public at-grade crossing on any train movements other than during the times set forth above; Stipulation is attached hereto and made a part hereof, marked Petitioner's Exhibit 1(a) and (b). The responsibility for the watchmen or flagmen at said crossing would end when the railroad active grade crossing advance warning devices become operational. The Applicant has further agreed to the Department of Transportation's recommendation to install, at the Applicant's cost, Class 4 signal devices with preemption of the vehicular traffic signal on State Road 500, also known as Old U.S. 441.

   
   

2. The parties herein have agreed that there is a need for the proposed crossing and have no objection to the proposed crossing and signalization.

   
   

3. The City of Mount Dora contends that a second public crossing is needed to serve the public.

   CONCLUSIONS OF LAW

   
   

4. Section 338.21, Florida Statutes 1977, provides, in part, that the Department of Transportation has regulatory authority over all public railroad crossings in this State. The purpose of this law is to minimize the hazard inherent with the crossing of railroads by vehicular traffic. The facts in this case reveal that the physical aspects of the crossing are favorable. It is further shown, however, that adequate warning devices should be provided which would consist of Class 4 signalization with vehicular traffic preemption at the intersection. Facts further show that there is a public need for said crossing and that the public interest as well as the interest of the Applicant would be best served by an immediate opening of the crossing. The rules of the Department of Transportation, Chapter 14-46, provide in part that the Secretary of the Florida Department of Transportation may grant temporary delay for the installation of signals at a new-grade crossing when the installation of such signals would adversely affect the scheduled installation of signal improvements at those grade crossings deemed to have a higher statewide priority. In view of the need for the immediate opening of the crossing and the favorable physical aspects of the crossing, the permit should be granted subject to the following conditions: the agreement of the Applicant to provide between 2:00 P.M. and 8:00 P.M. or dusk, whichever occurs first, the necessary watchmen or flagmen, consisting of two persons to manually prevent the ingress and egress of the public across the crossing during train movement; the installation of a manual control for the preemption of the vehicular traffic signal on State Road 500, also known as Old U.S. 441; the Seaboard Coast Line's stipulated agreement to provide a flagman for any train movements outside of the normal train movements during the hours set forth above; the Applicant's agreement to provide physical barriers to public ingress and egress to and from the shopping center across the Seaboard Coast Line Railroad other than at the proposed public at-grade crossing specifically to prevent the public from using the paved access roads as possible connectors to the private at-grade crossings on the east and west boundary of the shopping center.

RECOMMENDED ORDER

That the Department of Transportation issue a permit for the opening of the subject public at-grade crossing conditioned upon the installation of Class 4 signalization with preemption of vehicular traffic signals; that the permit be further conditioned upon the appropriate flagmen or watchmen being provided as set forth above, until such time as the railroad active grade crossing advance warning devices become operational; that the permit be further conditioned upon the Applicant's taking the necessary steps to physically block public ingress and egress across the at-grade crossings on both the east and west boundaries of the shopping center.

Submitted

Date: June 19, 1978

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 78-000713

Orders for Case No: 78-000713