STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF BOCA, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1604T

)

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

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, field a public hearing in this case on January 9, 1979, in Boca Raton, Florida. 1/

APPEARANCES

Robert A. Eisen, Esq., Assistant City Attorney, City of Boca Raton, 201 West Palmetto Park Road, Boca Raton, Florida 33432, appearing on behalf of the Applicant (City). Frank H. King, Esquire, Department of Transportation, Haydon Burns Building, Tallahassee, Florida 32301, appearing on behalf of the Florida Department of Transportation (Department). John W. Homes, Jr., Esquire, Florida East Coast Railway Company, One Malaga Street, St. Augustine, Florida 32054, appearing on behalf of the Florida East Coast Railway Company (Railway). Thomas

1. Woods, Esquire, Johnston & Erwin, 1030 East Lafayette Street, Suite 112, Tallahassee, Florida 32301, attorneys for Boca Bayou Condominium Association.

   
   

   ISSUE

   
   

   At issue herein is whether or not the City's application to open an at- grade crossing at NE/NW 2nd Street, Boca Raton, Florida (Milepost 324 + 2350') should be granted and is in keeping with the dictates of Section 338.21, Florida Statutes, and Chapter 14-46.03(2)(a), Florida Administrative Code.

   
   

   FINDINGS OF FACT

   
   

   Based on a careful consideration of the testimony of the witnesses and their demeanor while testifying, the documentary evidence and the other arguments of counsel, ,the following relevant facts are found.

   
   

   1. The City of Boca Raton filed an application to open an at-grade railroad crossing at NE/NW 2nd Street, which is situated at Railway's Milepost

      324 + 2350' and the Florida East Coast Railway Company filed an application to close Palmetto Park Road at-grade crossing, which is situated at Milepost 324 + 2988'. Due to the close proximity of the two crossings, a joint hearing was held. The Railway, in filing its application to close Palmetto Park Road, noted that its application was alternative to and contingent upon the granting of the

      City's application to open NE/NW 2nd Street. The Railway's position is that one of the two crossings is adequate.

      
      

   2. The Applicant's position respecting this application was presented through Mr. John Carroll, City Engineer since approximately September of 1977, and Mr. Joseph Pollack, P.E., of Kimley-Horn and Associates.

      
      

   3. Palmetto Park Road is a major east/west arterial road serving the City. The most recent traffic counts for Palmetto Park Road in May, 1978, indicate a peak traffic count of approximately 24,000 vehicles per day at the intersection of Palmetto Park Road, Dixie Highway and the existing crossing. This represents a volume/capacity ratio for that intersection of approximately 1.35 or approximately 35 percent greater than the designed capacity for the intersection. Such a condition is known as "forced flow." Based thereon, the City argues that there have been an increasingly high number of vehicle-to- vehicle and vehicle-to crossing gate accidents at the subject intersection and crossing. Thus, for example, the City points out that during calendar year 1977, the most current year that statistics were available, there were eighteen accidents at the intersection and crossing, with seven of those accidents directly involving the crossing gates closing on vehicles waiting to clear the crossing (See City Exhibit 10). According to Dr. Carroll, several additional crossing gate accidents were never reported.

      
      

   4. The West Palm Beach Urban Area Transportation Study (WPBUATS) indicates a 1955 traffic volume on Palmetto Park Road of 18,000 vehicles per day and 1990 traffic volume of 26,000 vehicles per day (City's Exhibits 4A, 4B, 5A and 5B). Such projections are based upon the City's construction of alternate east/west corridors which are not now in existence and, if such alternative routes are not constructed, the above projected traffic volume increases would be greater. Without question, the NE/NW 2nd Street project would reduce congestion on Palmetto Park Road.

      
      

   5. Testimony introduced during the hearing reveals that the NE/NW 2nd Street project will draw approximately 4,000 vehicles per day from Palmetto Park Road. If such reduction results, the volume/capacity ratio on Palmetto Park Road at the existing crossing and Dixie Highway intersection would reduce the current "forced flow situation to its approximate designed capacity. During the hearing, testimony was submitted to the effect that in addition to eliminating the "forced flow" condition at Palmetto Park Road, the subject project will facilitate emergency vehicle response time, would be more convenient to citizens desiring access to the central business district and would, if calculated, result in a fuel consumption saving.

      
      

   6. The NE/NW 2nd Street project was first envisioned by the City in 1964 and since that date, the City has acquired substantial amount of the necessary rights-of-way to accomplish completion of this project. Specifically, in 1973, the City acquired rights-of-way between Federal Highway and First Avenue, and in 1974 and 1976, the City required certain developers to dedicate other necessary rights-of-way. In September, 1977, the City's electorate approved a bend issue totaling $1,770,000 for road improvements, which included $448,000 for the NE/NW 2nd Street project.

      
      

   7. Mr. Pollack testified credibly that his firm designed the NE/NW 2nd Street project and the crossing to meet all applicable design safety criteria.

      
      

   8. The Railway's opposition to the opening of a crossing at NE/NW 2nd Street was based partially upon the close proximity of the proposed crossing to

the existing crossing at Palmetto Park Road and also upon the Railway's opinion that opening of the NE/NW 2nd Street crossing would do little in terms of reducing the over-utilization of the crossing at Palmetto Park Road.

10. It was noted during the hearing that by 1990, the average traffic vehicle using the Palmetto Park Road crossing will approach 30,000 vehicles. It is undisputed that the additional crossing at NE/NW 2nd Street will draw vehicles from the Palmetto Park Road crossing. In terms of alternative routes, the City conducted feasibility studies which reveal that either in terms of widening Palmetto Park Road or alternatively constructing an above-grade crossing at the Railway's mainline track, both alternatives are prohibitive in terms of cost and thus, not feasible. The prohibitive costs stem from the fact that the property abutting Palmetto Park Road in the close proximity of the existing crossing is presently developed for commercial uses. Finally, all parties agreed that regardless of whether the proposed NE/NW 2nd Street crossing application was granted, the closing of Palmetto Park Road would be disastrous.

CONCLUSIONS OF LAW

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

   
   

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

   
   

3. The authority of the Florida Department of Transportation is derived from Section 338.21, Florida Statutes, and Chapter 14-46.03(2)(a), Florida Administrative Cede.

   
   

4. Competent and substantial evidence was offered to warrant the recommendation that the application for the proposed opening at NE/NW 2nd Street be granted and is in keeping with the administrative criteria set forth in Chapter 14-46.03(2)(a), Florida Administrative Code.

   
   

5. Competent and substantial evidence was offered to warrant a recommendation of denial of the Railway's application to close the Palmetto Park Road Crossing.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby,

RECOMMENDED:

That the application of the City of Boca Raton to open an at-grade crossing at NE/NW 2nd Street (Milepost 324 + 2350') be GRANTED. It is further recommended that the application of the Railway to close the Palmetto Park Road at-grade crossing (Milepost 324 + 2988') be DENIED.

RECOMMENDED this 25th day of June, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTES

1/Based on the parties' joint effort to reach a factual stipulation posthearing, the parties were allowed an extension of time through June 1, 1979, to submit Proposed Findings of Fact and Conclusions of Law respecting the subject case.

The Proposed Findings of Fact and Conclusions of Law were considered by me in preparation of this Recommended Order.

COPIES FURNISHED:

Robert A. Eisen, Esquire Assistant City Attorney City of Boca Raton

201 West Palmetto Park Road Boca Baton, Florida 33432

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

John W. Humes, Jr., Esquire Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

Thomas F. Woods, Esquire Woods, Johnston & Erwin

1030 East Lafayette Street, Suite 112

Tallahassee, Florida 32301

Docket for Case No: 78-001604

Orders for Case No: 78-001604