STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1681

) SEABOARD COAST LINE RAILROAD ) COMPANY AND DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 9, 1979, in Fort Myers, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon the denial by the Department of Transportation of Lee County's application for opening a public railroad crossing.

APPEARANCES

For Petitioner: Thomas E. Moorey, Esquire

2532 East First Street Post Office Box 2040

Fort Myers, Florida 33902

Terry Lenick, Esquire Assistant County Attorney Lee County Courthouse Fort Myers, Florida

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Prior to coming on the record, a complete Stipulation was entered into by the parties, which included the receipt into the record of Exhibits A through Composite Exhibit D. In addition the Deposition of James Raymond Newell was received by agreement of the parties as a late-filed exhibit.

ISSUES

The parties stipulated that the denial of the proposed crossing was based solely upon the type of signal or warning devices the applicant had proposed to install. The issue presented is limited to the type of warning or signaling devices which should be installed at the proposed crossing.

FINDINGS OF FACT

1. The proposed crossing would be created by the extension of Thomas Road over the Seaboard Coast Line Railroad. Thomas Road runs northeast at approximately a 90-degree angle off the road known as Old 41 or Old Tamiami Trail, and its extension would cross the railroad approximately 600 feet from its intersection with Old 41. The Thomas Road/Old 41 intersection is located one-quarter mile southeast from the dead end of Old 41 in Lee County. Old 41 and Thomas Road are improved two-lane roads. Old 41 runs southeast for several miles and intersects US Highway 41. The extension of Thomas Road would terminate shortly after crossing the entrances to two proposed industrial parks.

   
   

2. The proposed crossing will be the sole access to the 22-acre tract zoned for the heaviest industrial use permitted by Lee County. The tract has been sold in two sections of approximately equal size.

   
   

3. The Seaboard Coast Line Railroad at the point of the proposed crossing consists of a mainline track and a spur, or storage track, which run parallel to Old 41 at the site of the proposed crossing. The mainline track runs from Tampa to Naples through the Fort Myers area in which the crossing will be located.

   The storage track runs 690 feet to the north of the proposed crossing and 1,400 feet to the south of the proposed crossing. The mainline track carries one train per day, and a speed limit of 35 miles per hour is imposed upon mainline traffic. The one train using the mainline track drops cars off onto and picks cars up from the storage track. These switching movements could entail multiple movements of rail traffic through the proposed crossing one time per day.

   Typically, cars would be dropped off onto the storage track as the train moved south on one day, and would be picked up as the train moved north on the following day. The number of cars dropped off onto the storage track would vary but would not exceed 60 cars, and there would generally be no more than 20 to 25 cars on the storage track at any one time. Each such car is 50 feet long. The mainline train is not run on Sundays.

   
   

4. The projected vehicular traffic on Thomas Road is 791 vehicles per day over the crossing based on projected planning data developed by the Department of Transportation.

   
   

5. Based on an assumed speed limit for Thomas Road of 35 miles per hour, a driver approaching the proposed crossing from Old 41 could see to the left of the crossing 85 feet and to the right of the crossing 92 feet from a point 200 feet from the crossing. Similarly, leaving the proposed industrial park, a driver could see 76 feet to the right and 46 feet to the left from a point 200 feet from the crossing. The 200-foot distance is derived from the distance it would take a driver to stop his vehicle while traveling at 35 miles per hour without going onto the track.

   
   

6. There are existing railroad crossings in incorporated Fort Myers that carry ten to 20 times as much traffic as the proposed crossing which are not signalized. Although the Department of Transportation has emphasized signalization of existing railroad crossings since 1973, it has only completed the construction of or planning for the construction of signalized crossings on 750 existing crossings. The Department has established a numerical priority of signalizing existing crossings based upon the speed of vehicular traffic, the speed of railway traffic, the number of trains, the number of vehicles, the type of signalization or warning devices existing at the crossing, the number of lanes, minimum sighting distances, minimum clear quadrant sight distances, parallel roads, and school bus usage. Under the Department's system, the lower

   the number assigned to the crossing the higher its priority. Planning for signalization of existing railroad crossings is currently in the 800's.

   
   

7. The Department's Safety Engineer identified the Townsend Street crossing in Wauchula as an existing railway crossing comparable to the proposed crossing. The Townsend Street crossing had a traffic count of 425 vehicles per day, two trains per day, 20-mile-per-hour train speed, traffic speed limit of 25 miles per hour, and minimum visibility in its worst quadrant of 57 feet. The Townsend Street crossing is not signalized and has a priority number of 3,250.

   
   

8. Electrical signal and warning devices at railway crossings may be bypassed and turned off by railway personnel during switching operations.

   
   

9. No evidence was introduced that the opening of the proposed crossing would endanger or damage the railroad operation. Opening of this crossing is necessary for the development of a major industrial property in Lee County.

   
   

   CONCLUSIONS OF LAW

   
   

10. This application is controlled by Rule 14-46.03(3)(b), Florida Administrative Code, which requires that a new public grade crossing have, as a minimum, flashing lights and bells installed. The facts presented at the hearing show that this type of required signalization is sufficient to protect the public given the low traffic volume and low train volume. This is demonstrated by the low priority assigned to the signalization of the comparable crossing in Wauchula by the Department of Transportation. Although the issue of assigning priorities to signalizing existing crossings may appear different from the issue of what type of signalization should be installed on a new crossing, both ultimately are grounded on the potential danger to the public. The priority assigned to the signalization of the existing crossing would make it the 3,250th crossing to be signalized in the Department's program in which 750 existing crossings have been signalized since 1973. At the existing rate, it would be 1998 before the Department of Transportation signalized the comparable existing crossing. The Department's recommendation with regard to the proposed crossing is to immediately install both signal lights and bells and gates.

There is an apparent inconsistency in the application of the Department's criteria for assessing the need to protect the public at existing crossings as opposed to proposed crossings.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend approval of the proposed crossing with the required roadside flashing lights and bells on all roadway approaches to the crossing, with the following additional conditions:

1. The speed limit on Thomas Road be set at 20 miles per hour; 1/

   
   

2. The Seaboard Coast Line Railroad Company be required to use a flagman at the crossing when switching cars onto the storage track over the crossing;

   
   

3. The Seaboard Coast Line Railroad Company be required to store cars at the southern-most end of the storage track and not leave cars on the northern end of the storage track when a flagman is not present; 1/ and

4. The obstructions to vision be removed from the area surrounding the crossing to permit a driver approaching the crossing at 25 miles per hour to see a train in sufficient time to stop before moving onto the track. 1/

DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1980.

ENDNOTE

1/ Although the necessity for seeing approaching rail traffic is reduced by installation of signal lights, this passive measure would provide additional safety at minimal cost as a back-up against malfunction or bypassing of the electrical signaling devices.

COPIES FURNISHED:

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

John Alderson, Jr., Esquire

Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida 32202

Thomas E. Moorey, Esquire 2532 East First Street Post Office Box 2040

Fort Myers, Florida 33902

Terry Lenick, Esquire Assistant County Attorney Lee County Courthouse Fort Myers, Florida

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AGENCY FINAL ORDER

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NOT EFFECTIVE UNTIL TIME EXPIRES TO FILE FOR JUDICIAL REVIEW AND DISPOSITION THEREOF IF FILED

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

LEE COUNTY, FLORIDA,

Petitioner,

vs. CASE NO. 79-1681T

SEABOARD COAST LINE RAILROAD COMPANY AND STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record and the evidence in this proceeding have been reviewed and Exceptions to Recommended Order have been considered as follows:

1. EXCEPTIONS TO RECOMMENDED ORDER, SEABOARD COAST LINE RAILROAD:

   
   

   1. Findings of Fact, Item 3. The Railroad asserts that the description of its operations is misleading. It acknowledges that the statement ". . . and there would generally be no more than 20 to 25 cars on the storage track at any one time" is "generally" accurate, but indicates that ". . . usage at a higher level is always possible". The possibility of an occurrence is speculative and could go on ad infinitum. The contested statement, read in its proper context, is a fair representation. This exception lacks merit.

      
      

   2. Findings of Fact, Item 6. The Railroad questions the relevance of comparing existing crossings in the Ft. Myers area with the proposed crossing. The Railroad does not question the accuracy of the factual statement. To reject or modify a finding of fact in the Recommended Order, Section 120.57(1)(b)9, Florida Statutes, requires a showing "with particularity" that said fact was ".

      . . not based upon competent, substantial evidence. . .". Therefore, the question of the facts' relevance is more appropriate in review and consideration of the Recommended Order's Conclusion and Recommendation.

      
      

   3. Findings of Fact, Item 7. The Railroad questions the relevance of comparing an existing crossing in Wauchula, Florida, with the proposed crossing. This exception, for the reasons stated in paragraph B above, will be considered in reviewing the conclusions and recommendations of the Hearing Officer.

   4. Findings of Fact, Item 9. The Railroad asserts that this item, in the Hearing Officer's Recommended Order contradicts the clear implication of Item 3, that the opening of the crossing would place an additional burden on the Railroad Company. Item 3 does not appear to imply any expanded usage of the storage track but rather a description of its present operational arrangement. A review of the record does not reveal any evidence showing the railroad would be endangered or damaged by the proposed crossing. This exception lacks sufficient merit.

      
      

   5. Conclusions of Law. The Railroad questions the comparison between the Townsend Street crossing in Wauchula, Florida, and the proposed crossing asserting that there are important factual differences. Comparing a proposed crossing to a program involving a large number of existing crossings throughout the state, which were established under legal requirements and technology at different points in time, to be improved to current requirements, based on priority and funding is not valid, because of different rationales and objectives. Using prior criteria, a crossing could be designed and signalized where a horse and wagon could cross in reasonable safety. Section 1, Chapter 6233, Laws of Florida 1911, provides in part, ". . . such crossings to be constructed with as little slant as practicable, so as to render easy passage over same with loaded teams". Further Section 34, Chapter 1987, Laws of Florida 1874, provides in part, ". . . All railroad companies in the state, whenever their track crosses a highway, shall put up or cause to be put up, large sign boards-at or near-said crossing, with the following inscription in large letters on both sides of the boards: "Look Out for the Cars. Improving a crossing already in existence is quite different from requiring a new, non-existent crossing to meet current day standards before it comes into existence.

      
      

      This exception has merit and is duly noted.

      
      

   6. Recommendation. The Railroad asserts that Item 2, requiring use of a flagman while switching cars and Item 3, limiting car storage to the southern track, of the Hearing Officer's Recommendation, would result in considerable expense and deprive the railroad of meaningful use of its property.

   
   

   "Duties of Railroads in Operating Trains" is comprehensively covered in Chapter 351, Florida Statutes, and Rule 25-3, Florida Administrative Code. To place additional operational requirements on the Railroad without benefit of legislation or administrative rule based on statute, would infringe on the legislative branch of government which is prohibited by Article II, Section 3, of the State Constitution. Further, to limit use of private property, without benefit of police power based on statutory authorization, constitutes an inverse taking of said property and entitles the property owner to full compensation (Article X, Section 6(a), Florida Constitution), for the extent of loss as a result of the restriction. This exception has merit and is duly noted.

   
   

2. REVIEW OF RECOMMENDED ORDER:

   
   

   1. The finding of fact that the storage track would run 1,400 feet to the south of the proposed crossing is not supported by the evidence as Exhibit A shows the southern portion to be approximately 2200 feet in length.

      
      

   2. In conclusions of law, using an improvement program for existing crossings as criteria for proposed crossings is an invalid comparison. Protection of the public is paramount in both situations. However, allowing a non-existent situation to come into being, using standards from existing

      situations that were established under prior conditions and requirements is regressing, not progressing, and places the public interest in greater jeopardy, as well as being contrary to Chapter 14-46.03, Florida Administrative Code.

      
      

      Minimum signalization requirements are applicable because of the record's showing of low traffic volume for the proposed crossing, however, due to the sight distance problems presented at the Hearing in the testimony and evidence, subsection (c) of Rule 14-46.03(3), Florida Administrative Code, providing for "cantilevered flashing lights" is set forth as an additional item in the conclusion of law.

      
      

   3. In the Recommendation of the Hearing Officer, four additional conditions were specified to "provide additional safety at minimal cost". However, all of the conditions are impotent because of the lack of authority and jurisdiction to require same.

   
   

   Items 2 and 3, as discussed in paragraph 1.F. above, present constitutional conflicts. Item 1, setting a speed limit of 20 miles per hour on Thomas Road, which is to become a county road, is not within the jurisdiction of the Hearing Officer or State Government. Section 316.006(3), Florida Statutes, vests jurisdiction in the county, to place and maintain traffic control devices on all county roads located within the county except state roads and city streets.

   Further, Section 316.189(2), Florida Statutes, specifies county speed limits and authorizes the Board of County Commissioners to set speed zones, after investigation, in conformity with Department of Transportation criteria.

   
   

   Item 4 of the Recommended Order's additional conditions places a continuing requirement on private property specifying the removal of underbrush and trees to improve sight distance, which would require periodic clearing, without benefit of legislation or compensation to provide for the "taking" of said property.

   
   

   All of the additional conditions specified in the Recommended Order are commendable and should be considered by the appropriate parties, however, they are inappropriate in an administrative Order for the reasons stated above.

   
   

3. ULTIMATE DETERMINATION

The Recommended Order of the Hearing Officer, with exceptions and additions noted above, is adopted, attached hereto and made a part hereof 1 and it is accordingly

ORDERED:

1. The application of Lee County to open an at-grade crossing on Thomas Road, at Milepost AX-975, is granted with signalization installed at said crossing to consist of cantilevered flashing lights and bells.

   
   

2. The expense of installing and maintaining the said traffic control devices is to be borne by the Applicant, Lee County, from any funds available to it for this purpose.

DONE AND ORDERED this 31st day of March, 1980.

WILLIAM N. ROSE

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Stephen F. Dean, Esquire Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

John Alderson, Jr., Esquire

Seaboard Coast Line Railroad Company

500 Water Street Jacksonville, Florida 32202

Thomas E. Moorey, Esquire 2532 East First Street Post Office Box 2040

Fort Myers, Florida 33902

Terry Lenick, Esquire Assistant County Attorney Lee County Courthouse Fort Myers, Florida

Charles G. Gardner, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee Florida 32301

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

Tallahassee, Florida 32301

Docket for Case No: 79-001681

Orders for Case No: 79-001681