STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-780

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

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on September 6, 1979, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the denial by the Department of Transportation of an application by Palm Beach County to open an at-grade railroad crossing at Old Dixie Highway and Tenth Street in that County. The County requested a formal hearing, and the matter was forwarded to the Division of Administrative Hearings by the Department of Transportation to conduct the formal hearing. The Department of Transportation and Florida East Coast Railway are parties opposing the opening of the crossing. The Petition to Intervene of Rinker Materials Corporation was granted at hearing upon a determination that their substantial interests would be affected by the proposed action.

APPEARANCES

For Petitioner: Lawrence C. Griffin, Esquire

Assistant County Attorney Palm Beach County Courthouse Post Office Box 1989

West Palm Beach, Florida 33402

For Respondents: Charles G. Garner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

For Intervenor: James F. Jackson, Esquire (Rinker 433 Seventh Avenue

Materials) Post Office Drawer K

West Palm Beach, Florida 33402

For Florida John W. Humes, Jr., Esquire East Coast Florida East Coast Railway Railway One Malga Street

St. Augustine, Florida 33804

Following conclusion of the hearing, the parties requested an extension of time to file proposed recommended orders with the Hearing Officer. The last of

these was filed by the County on December 10, 1979. The parties were agreed that the issues to be considered are those stated in Rule 14-46.03, Florida Administrative Code, or the necessity, convenience and safety of rail and vehicular traffic. Evidence was received from all the parties on these issues. The Hearing Officer has read and considered the proposed orders received from the County and Florida East Coast Railway. The other parties, to include the Intervenor, Rinker Materials Corporation, waived the filing of proposed recommended orders.

Entry of the Recommended Order was delayed because certain exhibits referred to in the record had to be forwarded from West Palm Beach.

FINDINGS OF FACT

Proposal

1.. The proposed railroad crossing is requested on the basis of increased vehicular traffic at Tenth Street and Old Dixie Highway, and projections of still heavier traffic by the year 2000. Current traffic is 13,700 vehicles per day, and the level of traffic is projected to be over 50,000 vehicles per day by 2000. At this time traffic must move from Tenth Street to Old Dixie Highway using the existing crossing at Park Avenue. This necessitates two opposite 90- degree turns to move from one north/south street to the other. These two turns slow the traffic movement at Park Avenue. Expert testimony was received that current traffic has exceeded the design capabilities of the Park Avenues Tenth Street/Old Dixie Highway intersections. Old Dixie Highway and Tenth Street constitute one of the major north/south traffic corridors in Palm Beach County. The proposal would extend Tenth Street south and cross the Florida East Coast Railway (FEC) tracks running directly into Old Dixie Highway. However, the Park Avenue crossing would be retained, because Park Avenue is a major east/west corridor. No study of an off-grade crossing was made, because the County had earlier made a cost analysis of such a crossing at Okeechobee Road, the most heavily traveled crossing in the County, and it was determined not to be cost effective. Because the traffic count was lower at the proposed crossing, a study of the proposal was not undertaken. The proposal is advantageous to the County, which owns much of the proposed right of way.

Necessity

1. Clearly, it would be advantageous to correct the traffic tie-up, which does exist, at Park Avenue/Tenth Street/Old Dixie Highway. Necessity to clear up the traffic was demonstrated; however, it was not demonstrated that this crossing would substantially improve the design limits of the area. Under the proposal the Tenth Street/Old Dixie Highway would interconnect more directly; however, the traffic flow north/south would be broken by the east/ west traffic flow on Park Avenue over the existing crossing 235 feet north of the proposed crossing. The intersections and crossings resulting from granting the application would not meet the design needs to handle the projected 52,000 vehicles per day.

   
   

   Convenience

   
   

2. It would be convenient for motorists on Tenth Street and Old Dixie Highway to avoid the two opposing 90-degree turns, and to a degree more convenient to motorists traveling east/west on Park Avenue. It would be convenient to the County, which owns a portion of the proposed right of way. However, the FEC would have to remove an existing switching track, railroad

   users in the area would suffer to a degree from the loss of that track, and it would cost the FEC $70,000 capital cost in replacing the existing tracks and

   $16,000 to $35,000 annually in increased operating costs. These costs would be passed onto the users and ultimately onto the consumers of those products shipped by rail. The longer switching time caused by movement of the tracks would also adversely affect the operations of one of the primary users of the railroad cars by delaying spotting of empty cars necessary to commencement of its daily operations. Convenience of the motorists on Park Avenue and Tenth Street/Old Dixie Highway would be adversely affected by the 28 train movements over the Park Avenue and proposed crossings each day.

   
   

   Safety

   
   

3. The proposal would not enhance safety. The proposed crossing would cross the railroad tracks at substantially less than the 70 degrees recommended in the Department of Transportation's standards. In addition, the proposed crossing would be only 235 feet south of the Park Avenue crossing and approximately 700 feet north of the Lake Park crossing. Three crossings within this distance create greater potential for danger than two crossings. There is more potential for mechanical failure, one more location for a crossing mishap to occur, and greater potential for human error by either engineers or motorists. The engineer, for example, would not have enough room to blow the required whistle signals between the crossings, and would have to observe vehicular traffic at the Park Avenue and proposed crossing at the same time.

   
   

   General

   
   

4. No evidence was presented concerning alternative traffic routes, feasibility studies of this specific crossing as an offgrade crossing, or overall benefits and detriments to both highway and railroad users. The proposed crossing would temporarily solve the existing traffic problem but at severe and recurring cost to the FEC and railroad users. While some changes may be necessary to improve traffic flow, the use of the existing switching tracks is necessary to effective and economical use of the railroad by its users. The danger to vehicular and railroad traffic would be increased by the proposed crossing.

   
   

   CONCLUSIONS OF LAW

   
   

5. The applicant has the burden to show by substantial and competent evidence that the proposal meets the criteria for opening at-grade crossings as set forth in Rule 14-46.03, Florida Administrative Code. The evidence presented did demonstrate a critical traffic situation; however, the proposal would only solve that problem at added cost and inconvenience to the FEC and its users. Further, the proposal would not solve the problem in terms of the projected traffic volume but only postpone its solution, because the proposed crossing would only carry a portion of the projected traffic volume. The fact that a study was conducted on a crossing with higher traffic volume which was not feasible does not prove or tend to prove that an off-grade crossing at this site would not be feasible. For example, the existence of both a north/south and east/west corridor at this approximate location would affect a study of this crossing site.

   
   

6. Weighing the convenience and necessity to vehicular traffic of opening the crossing against the inconveniences and cost to the FEC and its users, the necessity to maintain existing railroad facilities, and the danger to all, the

application for an at-grade crossing should be denied for failure to meet the criteria of Rule 14-46.03, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation should deny the application for the at-grade crossing.

DONE and ORDERED this 6th day of March, 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

Lawrence C. Griffin, Esquire Assistant County Attorney Palm Beach County Courthouse Post Office Box 1989

West Palm Beach, Florida 33402

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

St. Augustine, Florida 33804

James F. Jackson, Esquire

433 Seventh Avenue Post Office Drawer K

West Palm Beach, Florida 33402

Docket for Case No: 79-000780

Orders for Case No: 79-000780