STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA EAST COAST RAILWAY )

COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1529

)

CITY OF MIAMI, )

)

Respondent. )

and )

) DEPARTMENT OF TRANSPORTATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on October 20, 1981, in Miami, Florida. The parties requested and were accorded 60 days after the filing of the transcript to submit proposed findings of fact and conclusions of law. The transcript was filed on November 19, 1981. Subsequently, a further extension of the time for filing proposed findings and conclusions was requested so as to be due on February 15, 1982. Upon the timely submission of these pleadings the record was closed. All proposed findings have been considered. Where not adopted, they were found to be irrelevant or contrary to the weight of the evidence. By stipulation, the time constraint for issuance of this Recommended Order, as set forth in Section 28-5.402, Florida Administrative Code, was waived.

APPEARANCES

For Petitioner: Charles B. Evans, Esquire

One Malaga Street

St. Augustine, Florida 32084

For Respondent: Terry V. Percy, Esquire

174 East Flagler Street Miami, Florida 33131

For Intervenor: Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

This matter was referred to the Division of Administrative Hearings upon the application of the Petitioner to close the at-grade railroad crossing at

1. 55th Terrace within the city limits of Miami, Florida. Initially, the application was opposed by the Department of Transportation, but at the hearing DOT requested that its status as a party be changed from a Respondent to Intervenor. This request was granted. The application remains opposed by the City of Miami.

   
   

   The Petitioner presented three witnesses in support of its application, including its General Superintendent in charge of train operations from North Miami to Florida City, the Assistant Signal Supervisor in charge of construction and signal repairs, and a consulting traffic engineer, and five exhibits which were received in evidence. The City presented four witnesses in opposition to the application. Two witnesses testified on behalf of the Department of Transportation, as Intervenor in support of the railroad's application, and three exhibits were offered and received in evidence by the Department.

   
   

   Based upon the entire record in these proceedings, including the testimony and the exhibits, and the observed candor and demeanor of the witnesses, there is substantial, competent evidence to support the following factual findings.

   
   

   FINDINGS OF FACT

   
   

   1. The railroad crossing which is the subject of this proceeding is crossing number 272626-E, in the City of Miami, Florida. Its location at N.E. 55th Terrace is approximately 500 feet north of an existing crossing located at

      N.E. 54th Street, and roughly 1100 feet south of another crossing located at

      N.E. 59th Street. The Railway's rationale for seeking to close the N.E. 55th Terrace crossing is that these other two nearby crossings offer practical alternate routes to the N.E. 55th Terrace crossing, and can provide adequate access to the area for the public and emergency services. The City's opposition is based on its contention that closure of the N.E. 55th Terrace crossing would adversely affect emergency access to the area, which has experienced substantial growth in population due to the influx of refugees. The Department of Transportation supports the closing of the subject crossing, contending that

      N.E. 55th Terrace is not a thoroughfare and that it has a low volume of vehicular traffic, and because of its proximity to other crossings.

      
      

   2. The section of the Florida East Coast Railway involved in this proceeding runs from N.E. 79th Street to Biscayne Boulevard, a distance of approximately five miles. There are approximately 30 crossings now in existence over this section of the railroad's track. The principal justification for the closure of the N.E. 55th Terrace crossing is its proximity to the other crossings located at N.E. 54th Street and at N.E. 59th Street, and the resulting improvement in safety for vehicular traffic and railroad equipment. Removal of the subject crossing should eliminate vehicular accidents on the tracks, and eliminate upkeep and maintenance expenses caused by frequent vandalism at the

      N.E. 55th Terrace crossing location. In addition, closure will eliminate one sounding of the train whistle between N.E. 59th Street and N.E. 54th Street.

      
      

   3. The present signal device at the N.E. 55th Terrace crossing is of an old-type steel construction with a cast iron crossbuck on a concrete-type foundation. Because it is of steel construction, it is hard to maintain in a salt climate. This device is approximately 25 years old and has to be maintained by a pole line which is about 30 years old. It will have to be replaced within two years unless the application is granted and the crossing closed, at a cost of approximately $42,266.

   4. This signal device has been the subject of vandalism, requiring replacement of two bond wires within the last three months. On other occasions the lens and bulb were broken out. During the months of August, September and October, 1981, there were four instances when repairs were required at the subject crossing due to vandalism, the frequency of which is higher in this area than at other points in Miami.

      
      

   5. The crossing at N.E. 55th Terrace does not connect directly with Biscayne Boulevard. It is not an arterial road but is a collector or service road providing access to adjacent properties. There are alternative roads in the area which carry most of the large volume of traffic. Less than 500 vehicles a day use the N.E. 55th Terrace crossing, while approximately 12,000 vehicles a day use the N.E. 54th Street crossing. The movement of fire, police and other emergency vehicles would not be impeded by closing of the N.E. 55th Terrace crossing, since other crossings are readily available and offer better access and quicker response time than N.E. 55th Terrace. Police or fire vehicles moving over the N.E. 55th Terrace crossing must travel over a circuitous route because N.E. 55th Terrace is not a continuous street. In addition, closure of the subject crossing would remove an existing conflict point (a point where the path of any vehicle is interrupted by another vehicle), which is beneficial from a safety standpoint. Finally, any population growth in the area will have adequate transportation over N.E. 54th Street and N.E. 59th Street, and will not require the use of the N.E. 55th Terrace crossing. Consequently, there will be a negligible impact upon traffic over the crossings at N.E. 54th Street and N.E. 59th Street by closure of the N.E. 55th Terrace crossing.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

      
      

   7. The authority of the Florida Department of Transportation is derived from Section 338.21, Florida Statutes, and Section 14-46.03(2)(b), Florida Administrative Code, which states:

      
      

      "(b) Closing Public Grade Crossings -- Any Public grade crossing not equipped with active grade crossing traffic control devices, with less than 1,000 vehicles per day and with an access road to an adjacent crossing is a candidate crossing for closing. A grade crossing should not be closed if by doing so would increase the traffic on adjacent cross- ing to capacity level or if such crossings

      are already at capacity. Also, that the closing of such crossings would not unduly inhibit movement of ambulances, police cars, fire fighting equipment and emergency type vehicles...".

      
      

   8. The Petitioner has presented substantial, competent evidence to demonstrate that the subject railroad crossing meets the criteria established in Section 14-46.03(2)(b), Florida Administrative Code, relative to traffic amounting to less than 1,000 vehicles per day, available alternate routes

permitting access. to affected areas, adjacent crossings able to handle diverted traffic, and to show that the closure of the subject crossing would not unduly inhibit the movement of emergency service vehicles. Consequently, the closure of the subject crossing is proper.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Florida East Coast Railway Company to

close the at-grade railroad crossing at N.E. 55th Terrace in Miami, Florida, be granted.

THIS RECOMMENDED ORDER entered on this 17th day of March, 1982, in Tallahassee, Florida.

WILLIAM B. THOMAS

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 17th day of March, 1982.

COPIES FURNISHED:

Charles B. Evans, Esquire One Malaga Street

St. Augustine, Florida 32084

Terry V. Percy, Esquire

174 East Flagler Street Miami, Florida 33131

Charles G. Gardner, Esquire

562 Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 81-001529

Orders for Case No: 81-001529