STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION ) and CSX TRANSPORTATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO.90-5989

)

CITY OF BUSHNELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on January 22, 1991, in Ocala, Florida. The following appearances were entered:

APPEARANCES

For Petitioner CSX Transportation Inc.:

Stephen H. Shook, Esq. CSX Transportation Inc.

500 Water Street Jacksonville, FL 32202

For Petitioner Department of Transportation:

Charles C. Gardner, Esq. Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450 For Respondent City of Bushnell:

Bryan F. Eubanks, Esq.

P.O. Box 128 Bushnell, FL 33513

STATEMENT OF THE ISSUES

The issue for determination is whether the request for a permit to close the railroad crossing located at East Dade Avenue in the City of Bushnell, Florida, should be granted.

PRELIMINARY STATEMENT

Petitioner Department of Transportation (DOT) notified Respondent City of Bushnell (Bushnell) of intent to issue a permit to Petitioner CSX Transportation, Inc. (CSX), to close that section of Bushnell's East Dade Avenue traversed by CSX's railroad. Bushnell timely filed a Petition For Hearing, requesting formal administrative proceedings.

Thereafter the matter was transferred to the Division of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, DOT presented the testimony of two witnesses and 10 evidentiary exhibits. Testimony of four witnesses were presented on behalf of CSX. Bushnell presented testimony of four witnesses and three evidentiary exhibits, one of which was not admitted into evidence.

A transcript of the final hearing was filed with the Division of Administrative Hearings on February 27, 1991. Proposed findings of fact were submitted by the parties and are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Bushnell received notice of DOT's intended agency action in this matter in the form of a copy of DOT's, INTENT TO ISSUE PERMIT, dated May 23, 1990. The permit would authorize the closing of the East Dade Avenue railroad crossing located in Bushnell. Bushnell filed a petition requesting formal proceedings on June 19, 1990.

   
   

2. Bushnell has a population of 1,945, according to unofficial 1990 census figures. Population has increased almost 100 percent from the last census count which revealed the population to be 983.

   
   

3. Within the City, there is a total cf six street crossings on CSX's railroad. The railroad traverses the center of the City with one main line and one storage line which permits trains traveling in opposite directions to pass each other.

   
   

4. All the crossings fall within .76 of a mile and are located on traffic routes intersecting with the City's main thoroughfares; Main street running parallel to the west side of the railroad and Market street running parallel to the railroad's east side.

   
   

5. In addition to the crossing located on East Dade Avenue, the other five crossings in the City are located on East Seminole Avenue, Central Avenue, Bushnell Plaza, Noble Avenue and Belt Avenue. While the East Dade Avenue crossing is un-signalized, the other five crossings are protected by flashing lights, bells and gates.

   
   

6. Factors usually considered in determining need for a railroad crossing are locations of schools, hospita1s, fire stations and police stations. Also considered are volume and type of railroad and vehicular traffic; availability of alternate crossings; whether alternate crossings require use of excessively circuitous routes; whether the crossing presents a restrictive view to crossing

   traffic; the length of time that the crossing is blocked to crossing traffic by train activity; motor vehicular and train speed limits in the area; and the number of accidents occurring at the crossing.

   
   

7. There are no hospital facilities within the City. The elementary school is located south of East Dade Avenue near Noble Avenue and Bushnell Plaza. The high school is located north of Belt Avenue and west of the railroad outside of the city. The East Dade Avenue crossing is not included in any school bus route for either school.

   
   

8. The City Hall and Police station are located adjacent to Noble Avenue. This location is south of East Dade Avenue and east of the railroad. The East Dade Avenue crossing is not a regularly used route for fire and police vehicles, although it does serve as a main alternate route for those vehicles.

   
   

9. The major reason for usage of the East Dade Avenue crossing as an alternate route for fire and police vehicles is the lack of traffic signalization at the intersection of East Dade Avenue with Main and Market Streets.

   
   

10. Since Bushnell has no preemptive circuitry for existing traffic signals at the other nearby signalized alternative routes, closing the East Dade Avenue crossing would constitute an excessive restriction to emergency vehicles in the form of inordinate delay in their response time while waiting for traffic lights at more heavily travelled alternative intersections. Such delay would subtract from the limited time available to emergency personnel, commonly known as the "golden hour", to render aid to individuals requiring immediate attention.

    
    

11. The Dade Avenue crossing is 580.8 feet, 686.4 feet and 1108.8 feet from Belt Avenue, Noble Avenue and Bushnell Plaza, respectively. In the event that the East Dade Avenue crossing is closed, it is estimated that motorists desiring access to East Dade Avenue from Market Avenue will only need to travel an additional few seconds and use Belt Avenue to then access East Dade Avenue.

    
    

12. DOT conducted traffic counts on East Dade Avenue on February 5, 1990 through February 19, 1990. The results show that an average of 367 westbound vehicles use the crossing daily. A total of 178 eastbound vehicles utilize the crossing on a daily basis.

    
    

13. An average of 16 trains use the tracks daily, passing through the City at approximately 35 miles per hour. The storage track, located on the west side of the main line, presents an obstacle to observation by an eastbound motorist on East Dade Avenue if a train is on the storage track.

    
    

14. The lack of railroad signalization at the Dade Avenue intersection with Main and Market Streets presents a potential for automobiles, waiting at the stop sign on East Dade Avenue for approaching vehicles on Main and Market Streets to pass, to become trapped on the railroad tracks. Further, East Dade Avenue does not provide a direct route to any of the City's points of interest or public facilities.

    
    

15. DOT quantifies the relative safety railroad crossings through the assignment of a safety index number to each crossing in the state. In a comparison of railroad crossings, a higher safety index number for one crossing implies a higher level of safety at that crossing.

16. The determination of the safety index number for a crossing includes consideration of traffic volume at the crossing. East Dade Avenue has the highest safety index of any of the six railroad crossings in Bushnell. As determined by DOT traffic counts conducted in February of 1990, the crossing also has the lowest average daily traffic use of any of the six crossings, a determinative factor in accident occurrence.

    
    

17. Belt Avenue and Noble Avenue, the two crossings immediately adjacent to the north and the south of the East Dade Avenue crossing have average daily traffic counts of 2,715 and 6,080, respectively. In view of the low traffic count at the East Dade Avenue crossing, closure of that crossing may increase Belt Avenue crossing traffic from 2,715 to 3,023 and Noble Avenue traffic from 6,080 to 6,388.

    
    

18. The minor increase in traffic at the Belt Avenue and Noble Avenue crossings in the event of closure of the East Dade Avenue crossing would have no appreciable effect in the safety index presently accorded those two crossings. The Belt Avenue crossing safety index could be expected to decline from 65 to

    64.4 and the Noble Avenue index could be expected to decline from 59.8 to 59.6.

    
    

19. The CSX railroad contemplates the expenditure of $1,277 a year to maintain the East Dade Avenue crossing. This cost figure includes only the cost of surface maintenance and does not include any cost of maintenance of any future signalization that might be installed at the crossing in lieu of the crossing's closure. Funding has been reserved to signalize the East Dade Avenue crossing in the event the crossing is not closed.

    
    

20. The CSX railroad also contemplates that closing the East Dade Avenue crossing will increase the likelihood that trains will be permitted to travel through the City at speeds closer to the line speeds (some as high as 79 miles per hour) realized outside the City, resulting in more economical operation of train engines and thereby yielding some savings to the railroad. No authorization regarding such increased speed limits has been given by DOT or Bushnell to the railroad at the present time.

    
    

21. Bushnell's comprehensive plan assumes that the East Dade Avenue crossing will remain open as part of the total traffic circulation element of that plan. The City's comprehensive plan was not reviewed by DOT's diagnostic team in the course of their research regarding whether to recommend closure of she East Dade Avenue crossing, nor did the team hold any consultation with City officials regarding the plan.

    
    

22. Closure of the East Dade Avenue crossing would adversely affect existing and proposed local businesses on East Dade Avenue near the intersection with Main and Market Streets because such action would prohibit direct access to Main Street.

    
    

23. DOT has established a policy manual, agency procedures applicable to any implementation of the agency's decisions to close railroad crossings. Pertinent procedures in section 1.4.9 of that manual restate rule closure criteria contained in the agency's promulgated administrative rules and emphasizes that no crossing should be closed that serves as a main or alternative route for emergency vehicles. Implementation of any proposed closure of a crossing is to be accomplished in accordance with section 2.3.4 of the manual which also states that a crossing should not be closed if it serves

    as a main or alternative route for emergency vehicles. This section further prescribes that consultations should be had with city, county and state planning agencies to determine closure compatibility with established growth plans.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

25. DOT exercises regulatory authority over all public railroad-highway grade crossings in the State of Florida pursuant to authority contained in Section 335.141, Florida Statutes. In accordance with that authority, DOT has promulgated Rule 14-46.003(2)(b)1.-4., Florida Administrative Code, governing closure of public grade railroad crossings, which reads as follows:

    
    

    (b) Closing Public Grade Crossings. In considering the closing of a public grade crossing, the following criteria will apply:

    1. Necessity, convenience and safety effects upon rail and vehicle traffic.

    2. Utilization of remaining routes where practical.

    3. Effect of closing on rail operations and expenses.

    4. Excessive restriction to emergency type vehicles resulting from closing.

    
    

26. DOT's procedure manual restates the rule closure criteria in section

    1.4.9 of the manual and provides insight into what the agency nominally considers an excessive restriction to emergency vehicles. Apparently, according to the manual, no crossing should be closed that serves as a main or alternative route for emergency vehicles. Further, section 2.3.4 of the manual reiterates that position and directs that consultation should be had with city, county and state planning agencies to determine closure compatibility with established growth plans.

    
    

27. Counsel for Bushnell argues that DOT's failure to comply with the procedures manual should serve as a basis for denial of the requested permit. Although DOT has not strictly complied with requirements of its procedures manual in arriving at a decision to recommend closure of the East Dade Avenue crossing, these omissions are inconsequential in view of the c1ear failure of the proposed closure to comply with the requirement of Rule 14- 46.003(2)(b)4., i.e., the avoidance of "[e]xcessive restriction to emergency type vehicles resulting from closing."

    
    

28. While the impact on motorists seeking to travel to the area of East Dade Avenue will be minimal, there is greater potential for adverse impact on the response time of emergency vehicles coming from that direction. That adverse impact would appear to amount to an excessive restriction.

    
    

29. While the facts established at the final hearing demonstrate that signalization at the crossing should be accomplished at the earliest opportunity, the facts also establish that the East Dade Avenue crossing does not meet the criteria for closure.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying the requested permit for closure of the East Dade Avenue crossing.

DONE AND ENTERED this 26th day of March, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1991.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statut.es, on findings of fact submitted by the parties.

Petitioners' Proposed Findings.

(findings submitted by DOT have been adopted by CSX.)

1. Rejected, conclusion of law.

2. Rejected, not supported by weight of the evidence. 3.-5. Adopted by reference.

1. Adopted in substance.

2. Adopted by reference.

8.-17. Adopted in substance, though not verbatim.

1. The weight of the evidence supports a finding that 16 trains use the tracks daily.

2. Adopted in substance, though not verbatim.

3. Rejected, hypothetical with regard to subject crossing.

4. Adopted.

5. Rejected in part in view of the finding that lack of railroad signalization permits automobiles to be on the tracks at the crossing. Adopted as to the hazardous condition potential for cars to be trapped on the tracks.

6. Adopted in substance, though not verbatim. 24.-26.Adopted.

1. Rejected, speculative.

2. Rejected, unnecessary.

3. Rejected to extent that this proposed finding speaks to the agency's adherence to its procedures manual. The evidence establishes the agency's dereliction in this regard.

30.-32.Rejected, not supported by weight of the evidence.

Respondent's Proposed Findings.

1.-2. Adopted by reference. 3.-6. Rejected, unnecessary.

7. Included.

8.-1S. Rejected, recitation of law and preliminary matters. 16.-25.Adopted in substance.

1. Hypothetical.

2. Adopted.

28.-30.Rejected, recitation agency policy manual.

31. Adopted in substance. 32.-36.Adopted by reference.

37.-41.Adopted in substance, though not verbatim.

1. Rejected, unnecessary.

   
   

   COPIES FURNISHED:

   
   

   Stephen H. Shook, Esq. CSX Transportation Inc.

   500 Water Street Jacksonville, FL 32202

   
   

   Charles C. Gardner, Esq. Department Of Transportation 605 Suwannee Street

   Tallahassee, FL 32399-0450

   
   

   Bryan F. Eubanks, Esq.

   P.O. Box 128 Bushnell, FL 33513

   
   

   General Counsel

   Department of Transportation 605 Suwannee Street

   Tallahassee, FL 32399-0450

   
   

   Ben G. Watts Secretary

   Haydon Burns Building 605 Suwannee Street

   Tallahassee, FL 32399-0458

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. All exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

   
   

   DEPARTMENT OF TRANSPORTATION and CSX TRANSPORTATION, INC.,

   
   

   Petitioners,

   
   

   vs. DOAH CASE NO. 90-5989

   DOT CASE NO. 90-0247

   CITY OF BUSHNELL,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   Pursuant to notice this matter came to be heard on January 22, 1991, in Ocala, Florida, before Donald W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings. This order is entered by the Secretary of the Florida Department of Transportation, pursuant to section 120.59, Florida Statutes, following a review of the complete record and Recommended Order entered in this cause by the Hearing Officer.

   
   

   The Petitioners in this matter are the Florida Department of Transportation (hereinafter Department) and CSX Transportation, Inc. (hereinafter CSX), and Respondent, City of Bushnell (hereinafter City).

   The parties were represented at hearing as follows: For Petitioner: Charles G. Gardner

   Department 605 Suwannee Street MS 58

   Tallahassee, Florida 32399-0458

   
   

   For Petitioner: Stephen H. Shook CSX 500 Water Street

   Jacksonville, Florida 32202

   
   

   For Respondent: Bryan F. Eubanks

   Post Office Box 128 Bushnell, Florida 33513

   
   

   The Department herein adopts the Findings of Fact made by the Hearing Officer as stated in his Recommended Order issued March 26, 1991, except as specifically noted below. The Hearing Officer's recommended Conclusions of Law are not adopted except as specifically noted below. References to the transcript of this proceeding are herein noted as (Tr. p. , 1. ).

   FINDINGS OF FACT

   
   

   Recommended Findings of Fact Nos. 1-7 made by the Hearing Officer are adopted by the Department and are made a part hereof as if fully set out herein.

   
   

   1. The City Hall and Police station are located adjacent to Noble Avenue. This location is south of East Dade Avenue and east of the railroad. The East Dade Avenue crossing is not a regularly used route for fire and police vehicles, although it does serve as an alternate route for those vehicles, depending on where the service is needed. (Tr. p. 139, 1. 15-22). To the extent that the Hearing Officer found that the East Dade Avenue crossing was a main alternate route for emergency vehicles, that finding is rejected as not being based on competent substantial evidence in the record.

      
      

   2. The Hearing Officer's Finding of Fact No. 9 is adopted and made a part hereof as if fully set out herein.

      
      

   3. The Hearing Officer's Finding of Fact No. 10 is adopted in part and rejected in part as not being based on competent substantial evidence in the record. Finding of Fact No. 10 is made as follows. Bushnell has no preemptive circuitry for existing traffic signals at the other nearby signalized alternative routes. However, because the Department would put up safety devices should the East Dade Avenue crossing not be closed (Tr. p. 24, 1. 21-23), such installation would obviate any response time gained by the use of the unsignalized East Dade Avenue crossing. (Tr. p. 140, 1. 21-22).

The Hearing Officer's recommended Findings of Fact Nos. 11-22 are adopted and hereby incorporated as if fully set out herein.

23. The Hearing Officer's recommended Finding of Fact No. 23 is rejected as not being based on competent substantial evidence in the record and as being contrary to the applicable rules of the Department. Finding of Fact 23 is made as follows. The Department has established a policy manual, documenting agency procedures applicable to implementation of the agency's decisions to close railroad crossings. Pertinent procedures in section 1.4.9 of that manual restate rule closure criteria contained in the agency's promulgated Rule Chapter 14-46, and state that a crossing is a good candidate for closing if it possesses a number of characteristics, one of which is that the crossing does not serve as a main alternative route for ambulances, fire, or other emergency vehicles. Section 2.3.4 of the manual also sets out criteria upon which to evaluate whether a particular crossing is essential. That section provides that "No crossing should be closed that serves as a main or alternate route for ambulances, fire trucks, or other emergency vehicles." This section further prescribes that consultations should be had with city, county and state planning agencies to determine closure compatibility with established growth plans.

CONCLUSIONS OF LAW

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

   
   

2. The Department exercises regulatory authority over all public railroad- highway grade crossings in the State of Florida pursuant to authority contained in section 335.141, Florida Statutes. In accordance with that authority, the

   Department has promulgated Rule 14-46.003(2)(b)1.-4., Florida Administrative Code, governing closure of public grade railroad crossings, which reads as follows:

   
   

   1. Closing Public Grade Crossings. In considering the closing of a public grade crossing, the following criteria will apply:

      
      

      1. Necessity, convenience and safety effects upon rail and vehicle traffic.

      2. Utilization of remaining routes where practical.

      3. Effect of closing on rail operations and expenses.

      4. Excessive restriction to emergency type vehicles resulting from closing.

         
         

3. The Department's procedure manual restates the rule closure criteria in section 1.4.9 of the manual and provides insight into what the agency nominally considers an excessive restriction to emergency vehicles. That section provides that crossings which serve as the main alternative route for emergency vehicles should not be closed. While section 2.3.4 appears to conflict with 1.4.9 by stating that "No crossing should be closed that serves as a main or alternate route for ambulances, fire trucks, or other emergency vehicles," it is important to look both to the rule and to the totality of the circumstances in the instant case. The prohibition in rule 14-46.003 that a grade closing should not result in "excessive restriction to emergency type vehicles," is critical in evaluating the intended effect of sections 1.4.9 and 2.3.4 of the Highway Safety Improvement Program Manual. It is clear from the record and factual findings herein that overriding safety concerns mandate that the East Dade Avenue crossing be equipped with safety devices if it is not closed. The lack of safety devices are the main reason the crossing is used as an alternate route by police and fire emergency vehicles. The existence of five other alternate crossings over the CSX railroad within .76 mile within the City of Bushnell and the fact that traffic diverted from the Dade Avenue crossing would experience at most a few seconds additional travel time to access another crossing is sufficient to support a finding that closing the crossing at issue here would not result in an excessive restriction to emergency type vehicles. Section

   2.3.4 also directs that consultation should be had with city, county and state planning agencies to determine closure compatibility with established growth plans.

   
   

4. Section 316.072(5)(b), Florida Statutes, expressly permits drivers of emergency vehicles to proceed past a stop signal after slowing down as may be necessary for safe operation. No testimony suggested that emergency vehicles are required to wait for safety signals where a train is not on the track or imminently approaching the crossing.

   
   

5. Although the Department's Highway Safety Improvement Program Manual directs Department employees to consult with local planning authorities in relation to proposed crossing closures, the Department's failure to so consult in this instance constitutes harmless error as failure to follow an internal procedure rather than a failure to follow a published Department rule.

6. While the facts established at the final hearing demonstrate that signalization at the crossing should be accomplished at the earliest opportunity if the crossing is not closed, the facts conclusively establish that the East Dade Avenue crossing meets the criteria for closure and that it is in the interest of the safety of the travelling public to close the crossing.

It is therefore Ordered that a permit authorizing CSX railroad to close the at grade rail crossing on East Dade Avenue located within the city limits of the City of Bushnell is hereby GRANTED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of May, 1991.

for BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED:

Don W. Davis, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Stephen H. Shook, Esquire CSX Transportation, Inc.

500 Water Street Jacksonville, Florida 32202

Charles G. Gardner, Esquire

Florida Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Bryan F. Eubanks, Esquire

P.O. Box 128

Bushnell, Florida 33513

Thornton J. Williams, General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Fred Wise, Manager Rail Office

Florida Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399

L.A. Griffin

Manager of Public Transportation Florida Department of Transportation 611 Wymore Road, Suite 204

Winter Park, Florida 32789

RIGHT TO APPEAL

This Order constitutes final agency action and may be appealed by Respondent pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate district court of appeal, accompanied by the appropriate filing fee, and with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, M.S. 58, Tallahassee, Florida 32399-0458, within thirty

(30) days of rendition of this Order.

Docket for Case No: 90-005989

Orders for Case No: 90-005989