STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF JUPITER, )

)

Petitioner, )

)

vs. ) CASE NO. 79-781

)

FLORIDA EAST COAST RAILWAY )

COMPANY and DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The hearing in this case was commenced pursuant to notice on May 28, 1980, in West Palm Beach, Florida, and the concluding session was held on June 4, 1980, in Fort Lauderdale, Florida. This hearing was held by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. The case arose upon a petition to the Department of Transportation by the Town of Jupiter to open an at-grade railway crossing over the railway tracks of the Florida East Coast Railway Company. The Department of Transportation denied the petition and Petitioner requested a formal hearing pursuant to Chapter 120, Florida Statutes.

APPEARANCES

For Petitioner: Jerome F. Skrandel, Esquire

Old Port Cove Plaza 1200 US Highway One

North Palm Beach, Florida 33408

For Respondents: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

John W. Humes, Esquire

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

This case is governed by Section 338.21, Florida Statutes, and Chapter 14- 46, Florida Administrative Code, both of which are officially noticed. The parties were given notice at the hearing of the Hearing Officer's intention to take official notice of these provisions

The ultimate issue in this case is whether a proposed grade crossing should be opened. Rule 14-46.03(2), Florida Administrative Code, controls the opening of railroad grade crossings and provides three criteria and two policy considerations for governing such openings. The criteria are necessity, convenience, and safety of rail and vehicle traffic. The two policy

considerations are utilization of existing crossings where practical and consideration of damage to railroad operations and safety. The findings of fact are discussed as they relate to these criteria arid policies.

FINDINGS OF FACT

1. The proposed crossing is located at Florida East Coast Railway Company (FEC) Mile Post 284.6 and would be formed by extension of Medical Center Drive (renamed Jupiter Lakes Boulevard) across the FEC tracks to Alternate A-1-A. The proposed crossing would be located within the jurisdiction of the city of Jupiter, Florida.

   
   

2. The proposed crossing would affect an area bounded by US 1 on the east, the Florida Turnpike on the west, Indiantown Road on the north and Donald Ross Road on the south. See FEC Exhibit A.

   
   

3. There is no necessity for opening the proposed crossing. The proposed crossing is located 0.32 mile south of the existing crossing at Toney Penna Drive. Access to the area served by Medical Center Drive is available via Old Dixie Highway (0.32 mile) or via Toney Penna Drive and Military Trail (0.99 mile). The existing crossing has lights, bells and gates.

   
   

4. It would be more convenient to open the proposed crossing permitting direct access to Medical Center Drive; however, the convenience to the public would be minimal as indicated by the distances to Medical Center Drive via the alternate routes from the existing crossing at Toney Penna Drive. Because Medical Center Drive runs only 0.5 mile between Military Trail and Old Dixie Highway and cannot be extended to the east, the convenience to the public of opening the proposed crossing would be further minimized. Opening the proposed crossing would not enhance traffic flow onto or off of Alternate A-1-A when there is railway traffic because the proposed crossing is so close to the existing crossing that the gates and warning devices of both would have to operate simultaneously. Ref. Transcript of second hearing, page 132 (II - 132). The traffic volume is discussed in Paragraph 6 below.

   
   

5. The opening of the proposed crossing would be detrimental to vehicle and rail safety because it would create another conflict point at which vehicular and rail traffic converge. No evidence of the degree of increase in danger was presented.

   
   

6. The current traffic volume at the existing Toney Penna Drive crossing does not warrant opening the proposed crossing at this time, as indicated by the fact that it is not signalized (I - 208). It would be approximately five to ten years before the traffic volume approached the maximum capacity of the Toney Penna Drive crossing. The opinion of the city's expert was that in five years the Toney Penna Drive crossing would be unable to handle a peak traffic volume, but this assumed left turns off of Toney Penna Drive onto Old Dixie Highway would be permitted during peak hours (II - 113-118). This turning traffic was the primary impediment to moving the projected volumes of traffic. The crossing would be adequate with these left turns prohibited (I - 265). Traffic volumes are projected to increase, but improvement of any of the existing crossings will reduce volume at the remaining crossings (II - 113-118). Plans exist for the reconstruction of Alternate A-1-A in the area of the Toney Penna Drive crossing and the proposed crossing as a part of a rebuilding project to be undertaken in the next year to three years, to include improvement of the existing crossing.

7. The operation of the railroad would be hindered by opening of the proposed crossing. The FEC track is essentially a single-lane track running north and south on the east coast of Florida. This railway line provides rail service to the major population centers on the east coast of the state. Trains are operated north and south on the single-lane track at the same time, and pass on sections of dual track installed for this purpose. It is desirable that these sections of dual track be three miles in length. Crossings over dual track are not desirable because they are more dangerous than single-track crossings. The number of three-mile sections of track without crossings is decreasing, and the section of track between Donald Ross Road and Toney Penna Drive is one of the few remaining three-mile sections of track in the south- central Florida region without crossings. Because of increased rail traffic resulting from the energy crisis, efficient operation of the railroad and safety requires that provisions be made for dual passing tracks without crossings (II - 128-130, 147, 150).

   
   

   CONCLUSIONS OF LAW

   
   

8. Rule 14-46.03(2), Florida Administrative Code, provides the criteria for assessing the opening of a railroad grade crossing. The criteria are necessity, convenience, and safety of rail and vehicle traffic. This rule also sets out two policy considerations: Utilization of existing crossings where practical, and consideration of the damage to railroad operations and safety.

   
   

9. The facts show that there is no necessity to open the proposed crossing. The proposed crossing is not necessary for the reasonable enjoyment and use of any real property.

   
   

10. Access to Medical Center Drive and the property along it is available without undue hardship or inconvenience from an existing crossing 0.32 mile distant from Medical Center Drive along Old Dixie Highway or 0.99 mile distant along Toney Penna Drive and Military Trail. The proposed crossing is sufficiently close to the existing crossings that the warning devices and gates at the proposed crossing should activate simultaneously with those at the Toney Penna Drive crossing. There would be no increase in accessibility for emergency vehicles coming to or leaving the hospital by opening the proposed crossing.

    The proposed crossing would have limited usefulness because Medical Center Drive is blocked from further extension to the east.

    
    

11. The opening of the proposed crossing would decrease rail and vehicle safety by creation of another conflict point at which rail and vehicle traffic converge. While no evidence of the amount of increase in danger to rail and vehicle traffic was presented, even the smallest increase would not be warranted in relationship to the minuscule degree of inconvenience to the public caused by using the existing crossing at Toney Penna Drive.

    
    

12. The existing crossing at Toney Penna Drive should be utilized. However, the traffic volume projections would require that the Toney Penna Drive crossing and the intersection of Toney Penna Drive and Alternate A-1-A be redesigned and upgraded eventually to accommodate this increased volume. The Findings of Fact and Conclusions of Law regarding this intersection are integral to consideration of the primary issue presented in this case. In terms of the development of the road network east and west in this area, Toney Penna Drive has the added advantage of being able to be extended to the west, providing an east/west through road between Alternate A-1-A and the Florida Turnpike. In terms of development of a coherent road network, the area served by Medical

    Center Drive, even if extended westward, would duplicate the service corridor of Toney Penna Drive.

    
    

13. The railroad's operations and safety would be hindered by opening the proposed crossing, reducing the span of track available for installation of dual passing track without crossings. This potential damage is not warranted based on the availability of the Toney Penna Drive crossing and the minimal inconvenience resulting from its use.

    
    

14. The proposed crossing does not meet the criteria established by the rule, and its opening would be contrary to the policy consideration stated in the rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend to the agency head that the application for opening of a grade crossing at Medical Center Drive over the FEC tracks at Mile Post 284.6 be denied, and that the railroad crossing and intersect ion at Toney Penna Drive and Alternate A-1-A be redesigned and upgraded to accommodate the increased traffic volume projected for the future.

DONE and ORDERED this 25th day of September, 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

Jerome F. Skrandel, Esquire Old Port Cove Plaza

1200 US Highway One

North Palm Beach, Florida 33408

John W. Humes, Esquire

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

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

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

TOWN OF JUPITER,

Petitioner,

vs. CASE NO. 79-781

FLORIDA EAST COAST RAILWAY COMPANY and DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record in this case has been reviewed along with the Recommended Order of the Hearing Officer, copy attached. Petitioner's Exceptions to Hearing Officer's Recommended Order, together with his Proposed Findings of Fact, Conclusions of Law and Recommended Order and Application for Oral Argument have been considered.

1. Petitioner objects to the Hearing Officer referring to Mile Post 284.6 as the location of the proposed crossing instead of to Mile Post 284.48, the correct location. An examination of the record makes it abundantly clear that all parties knew the exact location of the crossing and this numerical error did no harm to Petitioner.

   
   

2. Error is alleged in that the area affected by the proposed crossing is grossly overstated. Petitioner refers to his Proposed Findings of Facts, Numbers 2 through 9 and No. 12, but no basis is shown for prejudice to Petitioner.

   
   

3. Petitioner simply states "There is necessity for the proposed crossing" and refers again to his Proposed Findings of Facts Numbers 10 through 23 and Number 26. These "facts" are simply a resume of evidence, consisting for the most part of synopses of testimony, which Petitioner considers favorable to his position. There is no showing that failure of the Hearing Officer to set out these particular facts must necessarily make error his finding as to the ultimate fact, the necessity of the crossing.

   
   

4. The only specific error alleged here is the finding of fact that the proposed crossing would be so close to an existing crossing that the gates and warning devices of both would have to operate simultaneously. The Hearing Officer refers to support for this finding in the transcript of testimony, page 132 (T-132).

5. The error here is alleged to be in the finding that "The opening of the proposed crossing would be detrimental to vehicle and rail safety because it would create another conflict point at which vehicular and rail traffic converge". Even if this finding is in error, which is not conceded, it should be read with the Hearing Officer's comment on this same point on page No. 5: "While no evidence of the amount of increase in danger to rail and vehicle traffic was presented, even the smallest increase would not be warranted in relationship to the minuscule degree of inconvenience to the public caused by using the existing crossing at Toney Penna Drive." It is clear that eliminating this finding would not change the basic finding that the proposed crossing is not necessary.

   
   

6. Petitioner reviews testimony and advances argument that the Hearing Officer erred in finding that the nearby crossing is adequate to handle traffic. The Hearing Officer supports this finding in his Order by reference to the testimony on which he relied, which is competent and substantial.

   
   

7. Again, Petitioner sets out testimony which may be considered as conflicting with the evidence upon which the Hearing Officer relied and alleges error in finding of fact. The Hearing Officer heard all the testimony and his finding is supported by the testimony he identifies in his Recommended Order.

Petitioner objects generally to the Conclusions of Law of the Hearing Officer and to his recommendations.

Petitioner dwells at length on the alleged failure of the Hearing Officer to observe the "legislative policy statements" set out in Section 334.02, Florida Statutes, again reviews the testimony of a number of witnesses and argues again that the Hearing Officer erred in not adopting the Findings of Fact and Conclusions of Law proposed by Petitioner.

A review of the record reveals nothing in the findings of the Hearing Officer which is inconsistent with the general statement of legislative intent found in Section 334.02, Florida Statutes. Where there is conflicting testimony or more than one possible interpretation the Hearing Officer must make findings and conclusions based on the entire record. There is substantial and competent evidence in the record to support the Findings of Fact and Conclusions of Law of the Hearing Officer.

Petitioner requests oral argument of the case. In view of the extensive argument of the case advanced by Petitioner in his exceptions, further oral argument would serve no purpose and the request is denied.

The Findings of Fact and Conclusions of Law of the Hearing Officer are adopted and made a part of this Order; his recommendation that the crossing not be opened is accepted.

IT IS ORDERED that the application for opening the subject crossing be, and is hereby, denied.

DONE AND ORDERED this 20 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

Jerome F. Skrandel, Esquire Old Port Cove Plaza

1200 US Highway One

North Palm Beach, Florida 33408

John W. Humes, Esquire

Florida East Coast Railway Company One Malaga Street

St. Augustine, Florida 32084

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

Tallahassee, Florida 32301

Docket for Case No: 79-000781

Orders for Case No: 79-000781