STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION ) and SEABOARD COAST LINE )

RAILROAD COMPANY, )

)

Petitioners, )

)

vs. ) CASE NO. 79-663

) 79-964

PLANT CITY, ) 79-1910

)

Respondent. )

)

RECOMMENDED ORDER

The above-styled cases were consolidated for hearing pursuant to notice on May 6 and 7, 1980, in Plant City, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. Entry of the Recommended Order in these cases was delayed to permit the parties to file their proposed findings of fact and conclusions of law, the last of which was filed July 31, 1980.

These cases arose upon notices filed by the Department of Transportation to close three railroad crossings located in Plant City, Florida. These crossings are the Davis Street crossing of the Seaboard Coast Line "A" line (Case No. 79- 663T), the Gordon Street crossing of the Seaboard Coast Line "A" line (Case No. 79-964T), and the Thomas Street crossing of the Seaboard Coast Line "A" line (Case No. 79-1910T). Testimony and evidence were taken on each crossing, and this order makes separate findings of fact on each crossing.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Ronae B. Keiser, Esquire

Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida 32202

For Respondent: Paul S. Buchman, Esquire

Buchman Building

212 North Collins Street Post Office Box 5

Plant City, Florida 33566

ISSUES

By its Motion to Dismiss, Plant City raised the question of the jurisdiction and authority of the Department of Transportation to close a railroad crossing on its own initiative. In short, Plant City argued that under the Home Rule Provisions of the Constitution of the State of Florida and Chapter 375, Florida Statutes, Plant City had authority to regulate railroad crossings and was the only entity which could initiate the closing of a crossing within the city's corporate limits. The Department of Transportation and Seaboard Coast Line Railroad Company argued that Section 330.12, Florida Statutes, gave the Department authority to regulate the opening and closing of railroad crossings, and that this authority to open and close crossings anywhere in the state was exclusive. While it was argued that the Department had the authority to initiate such an action on its own initiative without a request from a local government or a railroad, this is not an issue based on the facts presented because the Seaboard Coast Line Railroad Company initiated the action to close the railroad crossings in question. The Motion to Dismiss was denied on the basis that the Department of Transportation and Plant City had joint authority to regulate railroad crossings in the city; however, the Department had exclusive authority to open and close railroad crossings in the state under Section 338.12(3), Florida Statutes.

The remaining issue relates to a factual determination of whether the crossings in question should be closed. It was held that these determinations should be made in light of the criteria for closing railroad crossings and opening crossings as stated in Rule 14-46.03(a) and (b), Florida Administrative Code. The rule for closing a crossing states that a crossing is a candidate for closing if it does not have active grade crossing devices, has a traffic count of less than 1,000 vehicles per day, and has an access read to an adjacent crossing; however, closing should not be considered if it would increase the traffic on the adjacent crossing to the capacity level, or if the adjacent crossing is already at the capacity level. In addition, the criteria for opening a crossing are necessity, convenience, and safety of rail and vehicular traffic.

FINDINGS OF FACT

Gordon Street Crossing

1. The traffic count on the Gordon Street Crossing was taken on several occasions. The highest one-day count recorded was 732 crossings, while the lowest number of crossings for one day was 200. Traffic across this crossing is less than 1,000 crossings per day.

   
   

2. The Gordon Street Crossing lacks active grade crossing devices.

   
   

3. The most accessible crossing adjacent to the Gordon Street Crossing is located 340 feet west at Warnell Street. Warnell Street is accessible from Gordon Street north of the railroad track via Baker Street and Reynolds Street, a paired one-way system. Warnell Street is accessible from Gordon Street south of the railroad track via Jenkins Street. The next crossing east of Gordon Street is Maryland Avenue, located 1,345 feet to the east. It is accessible north of the railroad track on the Reynolds/Baker Street system, and south of the railroad track on Jenkins Street.

   
   

4. The highest traffic count recorded on the Maryland Avenue Crossing for a 24-hour period was 2,784 crossings. This is well below the capacity of this

   crossing, which is signalized with flashing lights and gates. The highest count recorded on the Warnell Street Crossing was 1,700 crossings in a 24-hour period. This is also well below the maximum traffic count which this crossing can handle. The Warnell Street Crossing has no active signaling devices at this time.

   
   

5. Closing of the Gordon Street Crossing would not deny access to any real property, and therefore maintaining the crossing is not necessary to the use and enjoyment of any real property by its owner.

   
   

6. Public safety would be enhanced only slightly by the elimination of the Gordon Street Crossing. Most of the benefit of closing this crossing would be derived from the shift of traffic from the Gordon Street Crossing to the signalized Maryland Avenue Crossing. However, the Warnell Street Crossing, which is not signalized and is only 230 feet east, will probably receive the majority of the diverted traffic. This will negate to a degree the benefit of the closing.

   
   

7. The inconvenience to the public from closing the Gordon Street Crossing will be minimal because of the Warnell Street route which is very close at hand.

   
   

   Thomas Street Crossing

   
   

8. The traffic count on the Thomas Street Crossing was taken on several occasions. The highest one-day count recorded was 640 crossings, while the lowest was 113 crossings. Traffic over the crossing was less than 1,000 vehicles per day.

   
   

9. The Thomas Street Crossing is located in the very center of Plant City and is signalized with flashing lights without gates.

   
   

10. There are several crossings which provide alternatives to the Thomas Street Crossing. Moving to the east, the next four streets cross the railroad track: Wheeler Street, 230 feet away; Evens Street, 510 feet away; Collins Street, 780 feet away; and Palmer Street, 1,060 feet away. To the west there are two crossings: Walker Street, 270 feet away; and Howard Street, 800 feet away. North of the railroad track these crossings may be reached by the Baker/Reynolds Street paired one-way system or by Mahoney Street, a two-way street. To the south of the railroad track the crossings may be reached on South Drane/Arden Mays. The Thomas Street Crossing is the only one of these crossings which dead-ends immediately south of the railroad track.

    
    

11. The highest traffic count recorded on Wheeler Street in one day was 11,760 crossings. The highest count recorded on Walker Street in one day was 1,237 crossings. Traffic capacity at either crossing immediately adjacent to the Thomas Street Crossing would not be pushed to or beyond its designed capacity by the closing of the Thomas Street Crossing.

    
    

12. Tie closing of the Thomas Street Crossing would not deny access to any real property, and therefore maintaining the crossing is not necessary to the use and enjoyment of any real property by its owner.

    
    

13. The accessibility to multiple alternative crossings east and west of the Thomas Street Crossing would prevent any substantial inconvenience to the public, particularly in light of the fact that the Thomas Street Crossing is the only one of these crossings which is not a through street south of the railroad track.

14. Public safety would be only minimally enhanced by the elimination of this crossing because of the close proximity of the remaining crossings. While it is argued that elimination of any crossing reduces the risk of an auto/train collision, it is the act of crossing the track that creates the risk. The closing of this crossing will not affect the number of crossings but only divert the traffic. The benefit of greater distance between the remaining crossings is nullified by the number of crossings existing so closely to both the east and west of the Thomas Street Crossing.

    
    

    Davis Street Crossing

    
    

15. The traffic count on the Davis Street Crossing was taken on several occasions. The highest traffic count recorded was 1,700 cars per day, and the lowest 486. On one other occasion it exceeded 1,000 cars per 24-hour period by

    39 crossings. It had a five-day average of 856.4 crossings.

    
    

16. The Davis Street Crossing does not have active grade crossing devices.

    
    

17. The closest alternative crossing is Howard Street, located east 1,190 feet. The next alternative crossing to the west is Alexander Street, 2,100 feet away. The Howard Street Crossing and the Alexander Street Crossing can be reached south of the railroad track on Haines Street. The Howard Street Crossing can be reached north of the railroad track on the Bakers Reynolds Street paired one-way system or on Mahoney Street. Although north of the railroad track one can travel west from Davis Street to Alexander Street, the routes can only be described as circuitous. Reynolds Street is one-way the wrong way, Mahoney Street is not a through street west of Carey Street, and Baker Street begins to run northwest at Carey Street.

    
    

18. The highest traffic count recorded on the Howard Street Crossing was 1,030 crossings per day. The highest traffic count recorded on the Alexander Street Crossing was 18,288 per day. Traffic capacity at either crossing immediately adjacent to the Thomas Street Crossing would not be pushed to or beyond its designed capacity by closing of the Davis Street Crossing.

    
    

19. Closing of the Davis Street Crossing would not deny access to any real property, and therefore maintaining the crossing is not necessary to the use and enjoyment of any real property by its owner.

    
    

20. Public safety would be enhanced only slightly by the closure of the Davis Street Crossing because of the remaining multiple crossings. The small benefit to public safety would be primarily from the diversion of traffic to the Alexander Street Crossing which is fully signalized with flashing lights and gates. The Davis Street Crossing is essentially flat with good visibility afforded to both train and vehicular traffic. Train traffic would be traveling at reduced speed at the Davis Street Crossing, having entered the city limits of Plant City.

    
    

21. Convenience of the public would be adversely affected by the closing of the Davis Street Crossing. The crossing in question carries on some days more than 1,000 cars per day. The average daily traffic count (ADTC) of 856 crossings exceeds that of Howard Street (450 ADTC) and Walker Street (529 ADTC), both of which would be retained. The distances to the alternative crossings are greater than the distances to alternative crossings of the other crossings proposed for closing. The lack of accessibility is compounded north of the railroad track by the lack of through streets running east and west. As pointed

    out at hearing, the area immediately south of the Davis Street Crossing is primarily a black neighborhood, while the area immediately north is predominantly white. The principal recreational facilities are located northwest of the Davis Street Crossing. Closing this crossing would create a physical barrier between these neighborhoods and residents and limit accessibility of the recreational facilities in the northwest area of town.

    
    

22. The police chief testified that closure of the Davis Street Crossing would make transfers of vehicles between the southwest and northwest parts of town more difficult. The fire chief pointed out that the area along Haines Street between Davis Street and Alexander Street immediately south of the railroad track is an industrialized area containing large warehouses. In fighting a fire in this area, a crossing at each end of the area would be helpful.

    
    

23. Three alternative routes of travel between the southwest and northwest areas are possible if the Davis Street Crossing were closed. Using the map, Exhibit 10, which lacks any scale reference, the street distances between the center of the southwest area to the hospital (H) and recreational facilities (A & P) were measured. Alternative I was via Howard Street. Alternative II was via Alsobrook Street and Alexander Street, and Alternative III was via Haines Street and Alexander Street. The following measurements were taken from the dot (.) in the intersection of Ball Street and the third street west of Franklin Street, which is unlabeled:

    
    

    	A	P	H
    Alternative I	17.0"	17.75"	20.0"
    Alternative II	15.5	15.50	13.5
    Alternative III	14.5	14.50	13.5
    Warnell Street	12.5	13.50	16.0

    
    

24. The existing crossing clearly provides the shortest distance to the recreational facilities, which is a prime concern to persons in the southwest section of town. Alternative III would require traffic to detour through an industrialized area of town, and Alternatives I and II are circuitous.

    
    

    CONCLUSIONS OF LAW

    
    

25. Although municipalities and the Department of Transportation exercise joint authority to regulate railroad crossings, the Department of Transportation exercises exclusive jurisdiction under Section 338.12(3) Florida Statutes, to open or close railroad crossings. The criteria for identifying a railroad crossing which is a candidate for closing are set out in Rule 14-46.03(b), Florida Administrative Code. These criteria are:

    
    

    1. Lack of an active grade crossing device,

    2. A traffic count of less than 1,000 vehicles per day,

    3. An access road to an adjacent crossing, and

    4. Capability of the adjacent crossing(s) to handle the increased vehicular traffic without exceeding the design capacity of the crossing.

       
       

26. Having identified a crossing which is a candidate for closing, the criteria set out in Rule 14-46.03(a), Florida Administrative Code, for opening

    crossings should be considered. These criteria are necessity, convenience, and safety of rail and vehicular traffic.

    
    

27. Applying the criteria above for identifying candidates for closing to facts presented on the crossings proposed to be closed, the Gordan Street and Thomas Street Crossings are clearly candidates for closing. Applying the criteria for opening a crossing to the facts presented on these two crossings, there is no necessity for keeping them open, and closing them would enhance safety to both rail and vehicular traffic. Although the increase to the safety of rail and vehicular traffic would be slight, the inconvenience to the public would be miniscule. On weighing all of the criteria in favor of closing these crossings against those for keeping them open, they should be closed.

    
    

28. Regarding the Davis Street Crossing, it is not a clear candidate for closing due to the amount of vehicular traffic which it handles. On some days more than 1,000 vehicles move across it, and it has an average of 856 crossings per day. Rule 14-46.03(3)(b), Florida Administrative Code, does not indicate whether the 1,000 vehicles per day is an average or an absolute figure. If one interprets the rule to apply to an average traffic count of less than 1,000 vehicles per day, the relatively high average traffic count on this crossing when compared to other crossings which would remain open mitigates against closing this crossing. Turning to the criteria of public safety, any potential increase in safety to vehicular and rail traffic would be offset by the remaining multiple crossing sites in Plant City. Rail traffic would have already slowed to its in-city speed limit by the time it reached this crossing, and the topography and visibility at the Davis Street Crossing are above average for both trains and vehicles. The inconvenience to the public when weighed against the slight increase to public safety does not favor closing. This crossing provides a direct route from the southwest section of town, which is predominantly black, to the northwest section of town in which public recreational facilities and the hospital are located. Closing this crossing would make the railroad a barrier between these two sections of town. Accessibility to the adjacent crossings is also a problem. The distances to the adjacent crossings are greater than distances to the alternative crossing sites for the other two candidates for closing. The access to the alternative crossing north of the railroad track is hampered by the absence of east/west through streets. The access to the Alexander Street Crossing south of the railroad track would take traffic through an industrial area. The chart included in the foregoing Findings of Fact shows the relative comparison of distances from the heart of the southwest area to various destinations in the northwest area of town. The existing crossing provides the best route to the public recreational facilities from the southwest section of town and a good route to the hospital. What the chart cannot show is that to go north from the southwest area via Alternative I one must initially go four blocks east; and to go north via Alternative II one must initially go two blocks south. This not only adds to trip mileage, but it is contrary to one's basic instincts. While residents will undoubtedly learn to cope with this situation, it will present an obstacle to visitors. When all of the factors are weighed, they mitigate against closure of the Davis Street Crossing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head enter a final order closing the Gordon Street and Thomas Street Crossings and leaving the Davis Street Crossing open.

DONE and ORDERED this 25th day of August, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Ronae B. Keiser, Esquire

Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida 32202

Paul S. Buchman, Esquire Buckman Building

212 North Collins Street Post Office Box 5

Plant City, Florida 33566

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION and SEABOARD COAST LINE RAILROAD COMPANY,

Petitioners,

vs. CASE NO. 79-663T

79-964T

PLANT CITY, 79-1910T

Respondent.

/

FINAL ORDER

The record in this cause has been reviewed together with the Recommended Order of the Hearing Officer. The Findings of Fact of the Hearing Officer are supported by the record and the Conclusions of Law are in accord with the facts.

The City of Plant City's Exceptions to Recommended Order have been carefully considered. The errors complained of are for the most part directed to the failure of the Hearing Officer to make the specific Findings of Fact proposed by Plant City. Exceptions No. 1 and Nos. 4 through 9 are of this nature. The facts proposed consist essentially of allegations by Respondent that the closing of the Thomas Street and Gordon Street crossings would result:

(a) in creating a barrier between neighborhoods; (b) divert traffic and create congestion at other crossings; (c) adversely effect public safety, particularly as to availability of police and fire protection.

A review of the Recommended Order shows clearly that the Hearing Officer made a finding of the evidentiary facts necessary to determine the issue. The ultimate facts as deduced by him may not agree with the proposals of Respondent but they are well supported by the record and will not be disturbed.

The exceptions numbered 2, 3, 10, and 14 allege error in that the Hearing Officer refused to accept Petitioner's position that the Department is without authority to order closed a crossing of a city street over a railroad under the provisions of Section 338.21(3), Florida Statutes. The point was argued at length before the Hearing Officer who concluded that ". . .the Department of Transportation exercises exclusive jurisdiction under Section 318.21(3), Florida Statutes, to open or close railroad crossings". Respondent presented no law or argument that would require a contrary conclusion and the finding of the Hearing Officer is accepted as correct.

The remaining exceptions allege generally error in findings of fact and conclusions of law and are without merit.

Exceptions of Seaboard Coast Line Railroad were not timely filed and were not considered.

The Recommended Order of the Hearing Officer is made a part of this Order; the Recommendation is accepted, and it is

ORDERED:

That the Gordon Street and Thomas Street crossings be closed and that the Davis Street crossing remain open.

DONE AND ORDERED this 10th day of October, 1980.

WILLIAM N. ROSE SECRETARY

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301

COPIES FURNISHED:

Stephen F. Dean, Esquire Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301

Charles G. Gardner, Esquire Florida Department of

Transportation Haydon Burns Building

Tallahassee, Florida 32301

Paul S. Buchman, Esquire Buchman Building

212 North Collins Street Post Office Box 5

Plant City, Florida 33566

Ronae B. Keiser, Esquire

Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida 32202

Jeanette Posey, Railroad Coordinator Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32301

Docket for Case No: 79-000663

Orders for Case No: 79-000663