STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF HOLLY HILL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0942

)

STATE OF FLORIDA, )

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to the notice on July 9, 1992, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Holly Hill, Florida.

APPEARANCES

For Petitioner: Edward F. Simpson, Jr., Esquire

Randal A. Hayes, Esquire Moore, Wood, Simpson, Correy,

McKinnon and Vulkeja Post Office Box 305 Ormond Beach, FL 32175

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458 PRELIMINARY STATEMENT

The City of Holly Hill, Florida, applied to the Department of Transportation (DOT) for an at grade railroad crossing permit for Tenth Street in Holly Hill, at Milepost 107+1513' on the Florida East Coast Railroad tracks. The DOT denied the City's application, and the City filed a timely request for hearing.

Both the City and the Department submitted proposed findings which were read and considered. Appendix A states which findings were adopted, and which were rejected and why.

STATEMENT OF THE ISSUE

Whether the application for an at grade vehicle railroad crossing permit should be issued to the City of Holly Hill by the Department of Transportation.

FINDINGS OF FACT

1. The City of Holly Hill, Florida, filed an application with DOT for an at grade railroad crossing permit on Tenth Street at Milepost 107+1513', in the city of Holly Hill.

   
   

2. The DOT denied the City's application by letter dated November 27, 1991, which enclosed the Department's intent to deny the permit. The City petitioned and received a hearing to consider its application.

   
   

3. The City of Holly Hill is located due north of the City of Daytona Beach on the east coast of the state of Florida. It stretches west approximately a mile from the Halifax River, and runs north for approximately two miles from the northern boundaries of the City of Daytona Beach.

   
   

4. Tenth Street, where the proposed railroad crossing would be located, is a local street running east and west in the City of Holly Hill, Florida. West of the Florida East Coast Railroad tracks, Tenth Street connects with Center Avenue and continues further west to connect with Nova Road, both of which are major north/south connectors. To the east of the Florida East Coast Railroad tracks, Tenth Street runs less than one block and terminates at its intersection with US 1, the major north/south arterial road in Holly Hill. Immediately east of the Florida East Coast Railroad tracks in the vicinity of Tenth Street, the City of Holly Hill maintains Holly Land Park, a major recreational area in downtown Holly Hill. Immediately to the west of the Florida East Coast Railroad tracks, the City of Holly Hill maintains a nature trail and facilities related to its public works department.

   
   

5. The City seeks the permit for an at grade crossing alleging that (1) a large number of pedestrians are illegally crossing the track and have persisted in doing so notwithstanding warnings and citations; and (2) the City feels that opening a crossing at Tenth Street would relieve bad traffic congestion existing on Eleventh Street just north of Tenth at Eleventh's intersection with US 1.

   
   

6. Video tapes and the observations of police officers of the City of Holly Hill establish a significant level of pedestrian traffic by adults and children over the railroad tracks between the western and eastern ends of Tenth Street. This practice is very dangerous. Some of the pedestrians walk their bicycles over the railroad tracks at this location. The majority of the young people crossing the tracks in this vicinity are moving east to utilize the facilities in Holly Land Park or moving west to go to the middle school and grammar school located respectively at the intersections of Center Avenue and Walker Street and Center Avenue and Fifteenth Street. This is a popular route because of the heavy vehicle traffic on Eleventh Street and Eighth Street. Warnings, citations, and patrols have not halted the illegal crossing of the tracks.

   
   

7. Eleventh Street is located 1300 feet to the north of Tenth Street and also runs east and west from the Halifax River westward to beyond Interstate 95. Plans call for the development of an interchange at the intersection of Interstate 95 and Eleventh Street. Eleventh Street appears to be the only street in downtown Holly Hill which moves directly west in this manner. From Nova Road east to US 1, Eleventh Street runs parallel to and north of a large drainage canal. Two shopping centers are located at the intersection of Eleventh Street and Nova Road. Eleventh Street is so close to this drainage

   feature that pedestrian walks on the southern side of Eleventh Street were removed. Because of this drainage structure, Eleventh Street cannot be inexpensively widened.

   
   

8. To the south of Tenth Street 1320 feet, Eighth Street runs east and west from the Halifax River to Nova Road. Both Eleventh and Eighth Streets are two-way streets along their entire length.

   
   

9. The City bases it petition to open the crossing upon traffic congestion caused by east bound traffic on Eleventh Street seeking to turn left on US 1, and by north bound traffic on US 1 seeking to turn left onto Eleventh Street when Eleventh Street is blocked by rail traffic. The I-95/Eleventh Street interchange will increase traffic congestion on Eleventh Street. The City asserts that opening the proposed crossing would alleviate this congestion because traffic using Eleventh Street would then use Tenth Street.

   
   

10. The traffic count on Eleventh, Tenth, and Eighth Streets was measured by the county. The traffic on Eleventh Street was 10,744; on Tenth Street was 1,019; and on Sixth Street was 6,153. According to a traffic projection run by the county traffic operations supervisor, 1,000 vehicles would be diverted from Eleventh Street to Tenth Street if a vehicle at grade crossing were opened at Tenth Street. Although this projection is suspect because it was made without any origin and destination surveys being done, the shift of 1,000 vehicles from Eleventh Street to Tenth Street is negligible in terms of its present and projected impact on Eleventh Street.

    
    

11. It was uncontraverted that a ground level pedestrian crossing with adequate gates and signals would permit pedestrians to cross the railroad tracks quickly and therefore reduce their exposure to train/bicycle accidents. (T- 81,135.)

    
    

12. Opening an at grade crossing on Tenth Street would create a greater potential for car/train accidents by increasing the exposure of vehicle traffic to railroad traffic. This was also uncontraverted.

    
    

13. The fire station is currently located in the back of City Hall which is located immediately across US 1 from Holly Land Park. Plans exist to move the fire station from its present current location to a location in the vicinity of the Public Works Department along Tenth Avenue. The public library which is currently located at Holly Land Park affronting on US 1 may be relocated to the old school building located south of the city hall. Movement from the fire- station at its proposed location would be no better or worse than it is now because Tenth Street does not extend east across US 1. Emergency equipment will have to use Eighth Street or Eleventh Street to go east, and these streets are also the best routes west.

    
    

14. The proposed crossing is not necessary based upon the traffic studies prepared by the City. Assuming the shift of 1,000 cars from Eleventh Street to Tenth Street, this would not warrant the expense and the potential hazard generated by permitting the proposed railroad crossing.

    
    

15. It was uncontraverted that the best way to solve the congestion problem on Eleventh Street would be to widen it. However, it was universally acknowledged that this would be very expensive. While evidence is contradictory, the most credible testimony supports using one-way pairs on Eleventh and Eighth Streets as a low cost interim measure to improve traffic flow along the arterial routes. (T-112,145 et seq., and 173.)

16. In addition to the crossings located at Eleventh and Eighth Streets, there are also crossing located at next to through streets south of Eighth, and at Fromich Street north of Eleventh. There would be more than five public crossings located within one mile of railroad track if a crossing were opened at Tenth Street.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation regulates all public railroad highway grade crossings in Florida, pursuant to Section 335.141(1)(a), Florida Statutes. The Department has been authorized to enact rules for opening and closing railroad crossings.

    
    

18. The City of Holly Hill's application for a crossing on Tenth Street is primarily motivated by the desire to improve the traffic congestion on Eleventh Street. While traffic congestion on Eleventh Street exist and may worsen, this is not justification by itself for opening up another crossing. Rule 14- 46.003(2), Florida Administrative Code, provides that opening a public grade crossing is dependent upon consideration of the following criteria:

    
    

    1. Necessity, convenience and the safety of rail and vehicular traffic.

       
       

    2. Utilization of existing routs where practical.

       
       

    3. Affect of public grade crossings on railroads' operations and expenses.

       
       

    4. Design of crossing structure, and railroad approaches.

       
       

    5. Visibility factors affecting either rail or vehicular traffic.

       
       

    6. Presence of passing tracks and their affect upon railroad and highway operations.

       
       

19. The city of Holly Hill demonstrated that opening an at grade pedestrian crossing at Tenth Street would improve safety and convenience, and have negligible affect upon vehicular traffic and safety. Such a crossing would enhance access to the City's public park and take youthful pedestrian traffic off of heavily traveled Eleventh and Eighth Streets as they proceed to the schools located in western Holly Hill. However, the City of Holly Hill did not demonstrate the necessity, convenience and improvement on vehicular traffic of opening a vehicular railroad crossing at Tenth Street. Much of the evidence presented about moving vehicular traffic through what is now its nature trail and park seems contraindicated.

    
    

20. The long-term solution to the traffic problems on Eleventh Street is a widening of Eleventh Street and placing the drainage structure under ground. However, an alternative interim solution would be utilizing Eleventh Street and Eighth Street as one-way pairs with Eleventh Street running east and Eighth Street running west.

21. Making Eleventh a one-way street moving in an easterly direction and Eighth Street a one-way street moving in a westerly direction would improve traffic flow more economically and more safely than opening up the proposed crossing. Making Eleventh one way moving east would eliminate left turns from US 1 onto Eleventh Street and create a left turn lane on Eleventh Street for traffic design to proceed north on US 1. Traffic congestion on US 1 created by persons desiring to make a left turn onto Eighth Street should be corrected by increasing the length of the left turn lane on US 1.

    
    

22. The City of Holly Hill has the ultimate burden of showing entitlement to the permit. The City did not meet its burden in establishing the necessity, convenience and safety of rail and vehicular traffic in establishing the proposed public at grade vehicular railroad crossing. It did show the necessity, convenience and safety of establishing a public at grade pedestrian only railroad crossing at the proposed location.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a Final Order be entered approving a pedestrian at grade crossing at Tenth Street in the City of Holly Hill, Volusia County, Florida; and

That the Petition for a public at grade vehicular railroad crossing at Tenth Street in the City of Holly Hill, Volusia County, Florida be DENIED.

DONE and ENTERED this 5th day of August, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 5th day of August, 1992.

APPENDIX CASE NO. 92-0942

PETITIONER'S PROPOSED FINDINGS

Petitioner's Recommended Order

Paragraphs 1, 2, 8 Recommended order paragraph no. 4

Paragraph 3, 5, 7, 10 Recommended order paragraph no. 7 Paragraph 4 Recommended order paragraph no. 8

Paragraph 6 Rejected, Data in Paragraph is more credible

Paragraph 9 Paragraph 6

Paragraph 11 Immaterial

Paragraph 12 Cumulative

Paragraphs 13, 14 Immaterial

Paragraph 15 Contrary to the fact that Tenth Street ends at US 1

Paragraphs 16, 17, 18 Contrary to more credible evidence

Paragraph 19 .027 represents one train/car collision every four years. If you are in the car, that is significant.

Paragraphs 21, 22,

23, 24, 25 All these improvements do not establish the necessity for the proposed crossing and appear to be counter to good land use and traffic planning.

Paragraph 26 No credible evidence to support this.

Paragraph 27 Paragraph 6

Paragraph 28 Paragraph 7

Paragraph 29 Immaterial

Paragraph 30 "de facto" crossings don't exist

Paragraph 31 Immaterial

Paragraph 32, 33,

34, 35 Paragraph 6

Paragraph 36 Paragraph 4

Paragraph 37 Speculative

Paragraph 38 Paragraph 7

Paragraph 39 Paragraph 9

Respondent's Recommended Order

Paragraph 1 Paragraph 1, 2

Paragraph 2 Paragraph 4

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

Edward F. Simpson, Jr., Esquire Randal A. Hayes, Esquire

Moore, Wood, Simpson, Correy, McKinnon and Vulkeja

Post Office Box 305 Ormond Beach, FL 32175

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 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. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

CITY OF HOLLY HILL,

Petitioner,

vs. DOAH CASE NO. 92-0942

STATE OF FLORIDA,

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The CITY OF HOLLY HILL (hereinafter HOLLY HILL) applied to the DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT) pursuant to the provisions of Section 335.141, Florida Statutes, and Florida Administrative Code, Rule 14-46.003, for a public grade railroad/highway crossing permit for Tenth Street in Holly Hill, at Milepost 107+1513' across the Florida East Coast Railroad tracks. The DEPARTMENT denied HOLLY HILL's application and HOLLY HILL requested an administrative hearing. The matter was referred to the Division of Administrative Hearings.

A hearing was held in this matter on July 9,1992 in Holly Hill, Florida.

The Hearing Officer entered his Recommended Order (copy attached) on August 5,1992. Pursuant to the DEPARTMENT's Rule 14-6.001 and Florida Administrative Rule 28-5.404, HOLLY HILL was afforded twenty (20) days to submit written exceptions to the DEPARTMENT. HOLLY HILL filed its exceptions to the Recommended Order with the DEPARTMENT on September 8, 1992. The exceptions having been untimely filed are rejected by the DEPARTMENT.

Having reviewed the record in its entirety, the Hearing Officer's Findings of Fact are deemed correct and are adopted and incorporated as if fully set out herein.

CONCLUSIONS OF LAW

1. The Conclusions of law are adopted with the following supplementation. Section 335.141(1)(a) and (b), provides:

   
   

   1. The department shall have regulatory authority

      over all public railroad-highway grade crossings in the state including the authority to issue permits which shall be required prior to the opening and closing of such crossings.

      
      

   2. A "public railroad-highway grade crossing" is a location at which a railroad track is crossed at grade by a public road.

      
      

      Florida Administrative Code Rule 14-46.003(2)(a), looks to certain criteria to justify opening a public grade crossing:

      
      

      Necessity, convenience and safety of rail and vehicle traffic.

      
      

2. Utilization of existing routes where practical.

   
   

3. Effect of public grade crossings on the railroad's operations and expenses.

4. Design of crossing structure, and road approaches.

   
   

5. Visibility factors affecting either rail or vehicle traffic.

   
   

6. Presence of passing tracks and their effect upon railroad and highway operations. Neither the statute nor the rule reflect that the DEPARTMENT's jurisdiction extends to approval of a pedestrian only rail crossing. While the DEPARTMENT may provide technical assistance to government entities wishing to establish such pedestrian crossing, it must be established as a result of an agreement between the railroad and the city. The Department's regulatory function does not extend to pedestrian only crossings.

WHEREFORE, IT IS ORDERED that the vehicular rail crossing at Tenth Street in the CITY OF HOLLY HILL, Volusia County, Florida, is hereby DENIED. Having no jurisdiction to order establishment of a pedestrian only crossing, the DEPARTMENT declines to adopt that portion of the Hearing Officer's recommendation.

DONE AND ORDERED this 1st day of October, 1992.

BEN G. WATTS

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED:

Stephen F. Dean, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Edward F. Simpson, Jr., Esquire Randall A. Hayes, Esquire Moore, Wood, Simpson, Correy, McKinnon and Vulkeja

Post Office Box 305

Ormond Beach, Florida 32175

Lawrence Paine, Esquire 1650 Prudential Drive

Suite 400

Post Office Box 1380 Jacksonville, Florida 32202-1380

Frank W. Wichowski, Supervisor Rail Programs

Department of Transportation 5151 Adanson Street

Orlando, Florida 32804

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Nick Serianni

State Public Transportation Administrator Department of Transportation

Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, Florida 32399 -0458

NOTICE OF 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: 92-000942

Orders for Case No: 92-000942