STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKALOOSA COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2379T

) DEPARTMENT OF TRANSPORTATION and ) LOUISVILLE and NASHVILLE RAILROAD ) COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 20, 1979, in Courtroom B of the Okaloosa County Courthouse, Crestview, Florida. The issue for determination at the hearing was whether the respondent Department of Transportation should grant the application of Okaloosa County to open a public at-grade rail/highway crossing at Berry Street in Holt, Okaloosa County, Florida.

APPEARANCES

For Petitioner: John R. Dowd

Post Office Box 1964

Ft. Walton Beach, Florida 32548

For Respondent: Philip S. Bennett

Department of Department of Transportation Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

For Respondent: Dawn E. Welch Louisville and Beggs and Lane Nashville Post Office Box 12950

Railroad Company Pensacola, Florida 32576

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. On March 31, 1978, Okaloosa County submitted its application for the opening of a public at-grade rail/highway crossing by new roadway construction at Berry Street in Holt, Florida. The crossing is proposed to be furnished with flashing lights.

2. Eight regularly scheduled trains, and an occasional unscheduled train, travel through Holt on a daily basis at an approximate speed of 40 miles per hour. Located approximately 600 feet to the west of the proposed Berry Street crossing is the Main Street crossing, which receives the majority of the traffic in the area -- about 600 crossings per day. No evidence was adduced which illustrated that there was any problem with traffic flow on or near the Main Street crossing. Beyond the Main Street crossing, about 400 feet to the west, is the Johnson Street, also known as the Post Office Road, crossing, which has only about 175 crossings per day. Log trucks, industrial vehicles and school buses currently utilize the Johnson Street crossing, which has been in existence for about 58 years.

   
   

3. Berry Street, a partly paved road, provides direct access to the Holt school and the Holt Assembly of God Church. The proposed Berry Street crossing would be within the school's warning zone. School buses presently utilize the Johnson Street crossing, located approximately 1,000 feet west of the proposed crossing.

   
   

4. The community of Holt and nearby communities have experienced two derailments of trains with accompanying explosions or leaks of toxic chemicals in the past two years. These accidents necessitated the immediate evacuation of the citizens of Holt for several days.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Department of Transportation has regulatory authority over all public railroad crossings in the state, including the authority to issue permits for the opening and closing of crossings. Florida Statutes, Section 338.21(3). Pursuant to such authority, the Department has promulgated rules relating to the opening and closing of railroad crossings. Rule 14-46.03(2)(a), Florida Administrative Code, provides in pertinent part as follows:

   
   

   "The foremost criteria in the opening of grade crossings is the necessity, convenience and safety of rail and vehicle traffic. Existing routes should be utilized where practical.

   Damage to the railroad company's operation and railroad safety consideration must be a factor in permitting a new grade crossing."

   
   

6. It appears from the evidence adduced at the hearing that, under the criteria set forth in the above-cited rule, there is no justification for opening the proposed Berry Street crossing. Two other crossings presently exist within 1,000 feet of the proposed crossing. These two existing crossings have more than adequate capacity to handle increased traffic in the area. The County has failed to demonstrate that considerations of necessity, convenience or safety mandate an additional crossing at Berry Street. Three crossings within such close proximity cannot be justified absent a showing of extenuating circumstances which bare upon public safety, convenience or necessity. The existing crossings provide an adequate means of access to the school and church situated on or near Berry Street. An additional crossing could actually increase potential safety risks by providing an additional point of exposure. The existing crossings should be adequate in terms of emergency or repair/maintenance situations. Traffic counts of usage of the existing crossings simply do not show a need or justification for an additional crossing at Berry Street.

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that the application of Okaloosa County to open a rail/highway crossing at Berry Street be DENIED.

Done and entered this 24th day of October, 1979, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

John R. Dowd

Post Office Box 1964

207 Florida Place

Ft. Walton Beach, Florida 32548

Philip S. Bennett

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

Dawn E. Welch Beggs and Lane

Post Office Box 12950 Pensacola, Florida 32576

Secretary William N. Rose Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32304

Docket for Case No: 78-002379

Orders for Case No: 78-002379