STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CSX TRANSPORTATION COMPANY and ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0594

) BETHLEHEM PRIMITIVE BAPTIST ) CHURCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 3, 1996, in Milton, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner Department of Transportation:

Charles G. Gardner, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 For Petitioner CSX Transportation, Inc.:

Stephen H. Shook, Esquire CSX Transportation, Inc.

500 Water Street Jacksonville, Florida 32202

For Respondent Bethlehem Primitive Baptist Church:

Maldrick E. Bright, Esquire Post Office Box 3513 Milton, Florida 32572-3513

STATEMENT OF THE ISSUE

Whether a permit to close the CSX public at-grade railroad crossing located at C and J Road in Santa Rosa County should be granted pursuant to Rule 14-46.003(2)(b), Florida Administrative Code.

PRELIMINARY STATEMENT

CSX Transportation, Inc. (CSX) submitted to the Department of Transportation (DOT) an application dated October 14, 1994, for a permit to close a public at-grade rail/highway crossing (Crossing) by removal of a portion of C and J Road in Santa Rosa County, Florida which crosses the CSX railroad tracks.

Petitioner, DOT, issued an Intent to Issue Permit to close the C and J Road crossing on November 1, 1995.

Respondent, Bethlehem Primitive Baptist Church (Bethlehem), challenged the DOT's Notice of Intent to Issue and requested an administrative hearing. The request for hearing was forwarded to the Division of Administrative Hearing.

At the hearing, Petitioner, DOT, called one (1) witness to testify and offered ten (10) exhibits into evidence. Petitioner, CSX called one (1) witness to testify but did not offer any exhibits into evidence. Respondent, Bethlehem, called five (5) witnesses to testify and offered two (2) exhibits into evidence.

After the hearing, Petitioner, DOT, and Respondent, Bethlehem, submitted proposed recommended orders on August 26, 1996. Petitioner, CSX, did not file a proposed recommended order.

FINDINGS OF FACT

1. On October 14, 1994, CSX submitted an application to close the public at-grade railroad crossing located at C and J Road, (also known as Zero Lane) in Santa Rosa County.

   
   

2. On November 8, 1995, DOT filed its Intent to Issue a Permit to close the C and J Road crossing.

   
   

3. C and J Road is a narrow two lane, two-way paved road approximately 20 feet wide. The road runs roughly 0.2 mile in a north/south direction, with two zig-zag ninety degree turns at its southern end. After the road's ninety degree turn to the south, C and J Road crosses the CSX railroad tracks at the same elevation or grade as the railroad tracks and then "T" intersects with US Highway 90 via the crossing.

4. Official area maps do not show C and J Road crossing the tracks or its intersection with US Highway 90.

   
   

5. US Highway 90 runs roughly in an east/west direction. The CSX tracks parallel US Highway 90.

   
   

6. One passenger and eight freight trains use the CSX railroad tracks and the crossing on a daily basis.

   
   

7. At its north end C and J Road intersects with Johnson Road.

   
   

8. Johnson Road extends generally in an east/west direction. It connects with St. Johns Road approximately 0.4 mile to the west of C and J Road. Additionally, Johnson Road connects with Airport Road approximately 0.5 mile to the east of C and J Road.

   
   

9. Cassie Lane is a narrow, two-way, two-lane paved road. The road runs roughly north and south between C and J Road and Johnson Road.

   
   

10. Cassie Lane connects to C and J Road via an "L" shaped curve just north of the crossing. Elimination of the crossing would turn C and J Road and Cassie Lane into a U-shaped road with exits on Johnson Road to the north.

    
    

11. Currently, the curve intersection of Cassie Lane to C and J Road is overgrown with vegetation. The vegetation obstructs motorists' view of the intersection of Cassie Lane and C and J Road. However, sight obstructions for overgrown vegetation can be eliminated.

    
    

12. St. Johns Road is a two-lane, two-way paved road. Airport Road is a two-lane, two-way, paved road. Both roads run in a north/south direction. There is about 0.5 mile between each road's intersection with Johnson Road and US Highway 90.

    
    

13. Both St. Johns Road and Airport Road have an at-grade crossing with CSX Railroad near US Highway 90. Both crossings are protected by flashing lights and gates.

    
    

14. However, the C and J Road crossing is protected by only flashing lights. Flashing lights alone are a less safe alternative to flashing lights and gates.

    
    

15. Five school buses use Airport Road on a daily basis. One school bus regularly uses St. Johns Road on a daily basis. Likewise, at least one school bus uses C and J Road and Cassie Lane on a daily basis. The closure of the C and J Road crossing

    will not significantly effect the routes or efficient operation of any school bus.

    
    

16. Additionally, fire, police and emergency medical vehicles use both St. Johns Road and Airport Road regularly. Again, the closure of the C and J Road crossing will not significantly affect fire, police, or emergency vehicles.

    
    

17. St. Johns Road has an average daily traffic (ADT) count of 308 vehicles. Airport Road has an ADT of 1,534 vehicles.

    Both are more heavily travelled than C and J Road with an ADT of

    35 vehicles. Both St. Johns Road and Airport Road can handle any additional traffic routed to St. Johns Road from C and J Road and Cassie Lane.

    
    

18. Respondent's church is located on C and J Road northwest of the crossing.

    
    

19. Respondent has been an active church for over 118 years.

    
    

20. Respondent has approximately 98 contributing members from the church and its parish.

    
    

21. Approximately sixty members, both young and old, of Respondent's congregation walk to the church on Saturday or Sunday for services and functions being held by the church.

    
    

22. Some pedestrians coming from US Highway 90 follow the roadway over the crossing. However, many pedestrians regularly use two, more direct, well-beaten short-cut routes, over the railroad to Respondent's church instead of going out of their way to use the C and J Road crossing. It is unlikely that the closure of the crossing will have any impact on the walking routes of the church members.

    
    

23. DOT inspected the crossing and recommended alternate routes should C and J Road's outlet to U.S. Highway 90 be closed.

    
    

24. The alternate routes recommended by DOT are C and J Road/Cassie Lane-Johnson Road-St. John's Road and C and J Road/Cassie Lane-Johnson Road-Airport Road .

    
    

25. All of the alternate routes were less than 1.5 miles and could be safely driven in less than 2.5 minutes. Neither the time nor distance of any of the alternate routes were shown to be inconvenient or unreasonable.

    
    

26. Since the crossing is within the Santa Rosa County's geographical and governmental authority and responsibility for

    maintenance, DOT notified the Santa Rosa County Commission of its intent to close the crossing. However, the County did not request a hearing to prevent closing the crossing and consolidating the roadway traffic. The county probably did not request such a hearing because it had made an agreement with CSX and DOT to "help" close another road crossing in order to build a rail crossing on the road leading to the County's new prison facility.

    
    

27. Additionally, Respondent has not provided or established the existence of an agreement between Respondent and a governmental body to assume jurisdiction of the crossing as required in Rule 14-46.003(2), Florida Administrative Code.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

29. Section 335.141, Florida Statutes, grants DOT regulatory authority over all public railroad-highway grade crossings in the state and requires DOT to adopt a program for the reduction of hazards at such crossings. As directed, DOT developed and maintains continuing physical, usage and economical record regarding each at-grade crossing and the roadways each crossing serves. The purpose of closing a crossing and consolidating road traffic is to eliminate exposure of at-grade railroad traffic accidents. Rule 14-46.003, Florida Administrative Code, also addresses the problem of maintenance costs and requires a railroad or governmental entity to be legally responsible for the maintenance of each crossing. Part of the program adopted by DOT requires DOT to maintain a formal, continuing crossing closure program. Rule 14-46.003, Florida Administrative Code, states in part:

    
    

    Highway/Railroad At-Grade Intersections -- Authorization for Opening and Closing.

    1. Purpose. To provide rules for the Florida Department of Transportation (Department), pursuant to Section 335.141, Florida Statutes, for the establishment of uniform standards in the issuance of final orders of the department regarding permits for the opening and closing of public railroad-highway grade crossings. The two basic objectives of these uniform standards will be to:

       1. Reduce the accident frequency and severity at grade crossings, and

       2. Improve rail and motor vehicle operating efficiency.

          
          

30. Rule 14-46.003(3), Florida Administrative Code states in part:

    
    

    1. Closing Public Grade Crossing. In considering the closing of 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.

    2. Closing Public Grade Crossing by Department.

    1. The Department will initiate and maintain a formal continuing, crossing closure program based on analysis of engineering and safety factors and minimal negative impact on operating efficiency to vehicle and rail traffic. Local public bodies will be provided the candidate listing for review and recommendation.

31. In this case, DOT has shown that the closing of C and J Road crossing effectuates the State's policy of improved safety at railroad crossings by eliminating where reasonably convenient the interaction of vehicular traffic with rail traffic. The closing is not unreasonable nor inconvenient given the minimal distance and time requirements of the alternate routes proposed by DOT. Likewise, the closing does not significantly impact emergency traffic or school bus traffic.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is,

RECOMMENDED:

That the Department of Transportation's decision to close the rail crossing at C and J Road in Santa Rosa County should be sustained.

DONE and ENTERED this 31st day of October, 1996, in Tallahassee, Leon County, Florida.

DIANNE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephen H. Shook, Esquire CSX Transportation, Inc. Law Department, J 150

500 Water Street Jacksonville, Florida 32202

Maldrick E. Bright, Esquire Post Office Box 3513 Milton, Florida 32572-3513

Ben G. Watts, Secretary Department of Transportation

535 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

================================================================= CORRECTED DISTRICT COURT OPINION

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

CORRECTED COPY 10/21/97

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

BETHLEHEM PRIMITIVE BAPTIST NOT FINAL UNTIL TIME EXPIRES TO CHURCH, FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

CASE NO. 97-212

v. DOAH CASE NO. 96-594

CSX TRANSPORTATION, INCORPORATEDand STATE OF FLORIDA, DEPARTMENT

OF TRANSPORTATION

Appellee.

/ Opinion filed October 20, 1997.

An appeal from an order of the Division of Administrative Hearings.

Maldrick E. Bright, Esquire, Milton, for Appellant.

Stephen H. Shook, Esquire, Jacksonville for Appellee CSX Transportation, Inc.

Pamela S. Leslie, General Counsel, Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellee State of Florida.

PER CURIAM.

AFFIRMED.

BARFIELD, CJ., KAHN and BENTON, JJ., Concur

M A N D A T E

from

DISTRICT COURT OF APPEAL OF FLORIDAA FIRST DISTRICT

To the Honorable Ben G. Watts, P.E., Secretary, Department of Transportation, Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

BETHLEHEM PRIMITIVE BAPTIST CHURCH

v. Case No. 97-212

Lower Tribunal Case No. 96-594

CSX TRANSPORTATION, INCORPORATEDand STATE OF FLORIDA, DEPARTMENT

OF TRANSPORTATION

The attached opinion was issued on October 20, 1997.

YOU ARE HEREBY COMMANDED that further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida.

WITNESS the Honorable Edward T. Barfield, Chief Judge

of the District Court of Appeal of Florida, First District, and the Seal of said Court done at Tallahassee, Florida,

on this 5th day of November, 1997.

(SEAL) JON S. WHEELER, Clerk

District Court of Appeal of Florida, First District

Docket for Case No: 96-000594

Orders for Case No: 96-000594