The Issue Whether permits for two public at-grade railroad crossings should be granted.
Findings Of Fact By application the Agrico Chemical Company seeks permits to open two public at-grade railroad crossings by constructing a spur track between the Seaboard Coastline Railroad and Agrico Railroad beginning 1,868 feet south of Seaboard Coastline Mile Post SVC 851 at Agrock, Florida. The application involves opening two public at-grade rail highway crossings by new rail line construction. The local popular name of the road is Fort Green Road and Payne Creek Road. Two tracks were constructed less than two years ago so that the Seaboard Coastline Railroad could come off their main line and come into Agrico and pick up loaded or unloaded cars for transportation to the south, north and west. Agrico now desires to construct a track which more directly ties into what they term their Payne Creek trackage to the southeast. The new crossings would come straight across the Seaboard Coastline mainline into the Fort Green trackage. Agrico would have to spend less time on Seaboard Coastline trackage and the plan is to erect electric signal crossings whereas there are no electric signal crossings in the area at the present time. Such signalization would render the crossings less hazardous. The Petitioner Agrico will pay for the signalization at both crossings. Signalization consists of bells and signal lights. The Seaboard Coastline Railroad will maintain the crossings and signalization at the expense of the Petitioner Agrico. There are twelve trains per day. The Respondent Seaboard Coastline Railroad was not represented at the hearing, but a letter was introduced stating that "Seaboard Coastline will indicate no objections to these crossings when the appropriate public hearing is scheduled". The Respondent Department of Transportation reviewed the subject application and expressed the desire of the district railroad committee that Agrico Chemical Company pay for the installation of flashing lights and that the installation would conform to the manual on uniform traffic control devices pertaining to signalized railroad crossings. It also stated that in the interest of good safety practices, no buildings should be constructed or plantings made that would prevent good sight distance at the crossing. Additionally, the Respondent Department of Transportation suggested that the railroad crossings be maintained by "other than the Department of Transportation". The Hearing Officer further finds: The application for new railroad trackage is in the interest of the Petitioner Agrico Chemical Company and is in the interest of the public using the two railroad crossings. Signalization as planned will increase the safety of vehicular traffic.
The Issue Introduction. 21 The Parties. 21 General Description of Monroe County 22 The Monroe County Year 2010 Comprehensive Plan 24 The Original Comprehensive Plan. 24 The Remedial Comprehensive Plan. 25 Area of Critical State Concern Review 27 The Florida Keys Area of Critical State Concern. 27 Area of Critical State Concern Review of the Remedial Plan. 28 The DCA Proposed Rules 31 Challenges to the DCA Proposed Rules 33 The Administration Commission Proposed Rules . 34 Challenges to the Administration Commission Proposed Rules 36 The Final Order in the DCA and Administration Commission Proposed Rules Challenge Cases. 36 The Department's Review Pursuant to the Act. 38 Section 163.3184, Florida Statutes 38 The Department's Review. 39 Impact of the Area of Critical State Concern Review on the Department's Review Under the Act. 40 Challenge to the Remedial Plan Pursuant to the Act by the Intervenors 41 Carrying Capacity: The Cornerstone of Monroe County Remedial Plan. 42 Carrying Capacity as a Planning Tool 42 Monroe County's Carrying Capacity Analysis 44 The Settlement Agreement's Reference to a Carrying Capacity Analysis 45 Monroe County's Application of the Carrying Capacity Analysis. 46 Hurricane Evacuation Carrying Capacity 47 Environmental Carrying Capacity. 48 The Department's Review of Monroe County's General Acceptance of a Carrying Capacity Approach 49 Monroe County's Environment. 49 The Unique Environmental Character of the Florida Keys 49 General Habitat Types in the Florida Keys. 51 Upland Habitat Types 53 Wetland and Transitional Wetland Habitat Types. 55 Marine Habitat Types 59 The National Marine Sanctuary. 63 The Upper, Middle and Lower Keys 64 Areas of Critical County Concern 66 Ohio Key 67 Coupon Bight 67 Species of Special Concern 68 The Florida Key Deer 68 Marine Turtles 72 The Impacts of Development on the Environment of the Florida Keys. 72 A Brief History of Development in the Florida Keys 72 The Impact of Development on Water Quality and Marine Resources 73 The Impact of Development on Coral Reefs 79 The Impact of Development on Seagrasses. 80 The Impacts of Boating 80 The Impacts of Docks and Marinas 82 The Impacts of Development on Wetlands and Transitional Wetlands. 83 The Impact of Development on Mangroves 85 The Impact of Development on Beach Berm. 85 The Impact of Development on Hammocks. 86 The Impact of Development on Offshore Islands. 87 The Impact of Development on North Key Largo . 88 The Impact of Development on Ohio Key. 88 The Impact of Development on Key Deer and Big Pine Key 89 The Impact of Development on Coupon Bight. 92 The Impact of Development on Marine Turtles. 92 The Florida Keys' Environmental Carrying Capacity 92 Monroe County's Conclusion 92 The Carrying Capacity of the Nearshore Waters and Seagrasses. 94 The Carrying Capacity of the Coral Reefs of the Florida Keys. 98 The Carrying Capacity of Offshore Islands. 98 The Carrying Capacity of North Key Largo, Ohio Key and Coupon Bight. 99 The Carrying Capacity of the Key Deer and Big Pine Key 101 The Need to Maximize Measures to Protect Other Environmental Features of the Florida Keys Environment 103 Sewage Treatment Systems 104 Provisions of the Remedial Plan. 104 The Department's Review Under the Act. 107 Intervenor Challenges. 108 Maintenance vs. Improvement. 109 Delay of the Adoption of the Master Plan 110 The Interim Levels of Service. 112 Cesspool Inspection Program. 117 Disturbed and Undisturbed Wetlands 117 Stormwater Treatment. 118 Provisions of the Remedial Plan. 118 The Department's Review Under the Act. 119 Intervenor Challenges. 119 Delay of the Adoption of the Master Plan 120 Impact on Water Quality. 121 The Interim Levels of Service. 121 Marine Resources 121 Provisions of the Remedial Plan. 121 The Department's Review Under the Plan 124 Intervenor Challenges. 125 Adequacy of Living Marine Resource Protections. 127 Moored/Anchored Vessels, Marinas and Docks. 128 Provisions of the Remedial Plan Impacting Moored/Anchored Vessels. 128 Provisions of the Remedial Plan Impacting Marines. 128 Provisions of the Remedial Plan Impacting Docks. 129 The Department's Review Under the Act. 131 Intervenor Challenges. 133 F Residential Docks. 135 G. Perpendicular Docks. 136 Canals 137 Provisions of the Remedial Plan. 137 The Department's Review Under the Act. 138 Intervenor Challenges. 138 Wetlands. 139 Provisions of the Remedial Plan. 139 The Department's Review Under the Act. 140 Intervenor Challenges. 140 Disturbed Wetlands 141 Setbacks 141 Provisions in the Remedial Plan. 141 The Department's Review Under the Plan 142 Intervenor Challenges. 143 The Justification for Setbacks 143 "No Net Loss" of Wetlands 145 Provisions of the Remedial Plan. 145 The Department's Review Under the Act. 145 Intervenor Challenges. 146 On-Site Mitigation vs. Off-Site Mitigation 147 ACCC: Big Pine Key, North Key Largo and Ohio Key. 148 Provisions of the Remedial Plan. 148 The Department's Review Under the Act. 151 Intervenor Challenges. 152 Big Pine Key; Protection of the Key Deer 154 North Key Largo. 155 Miscellaneous Environmental Provisions. 156 Freshwater Lenses. 156 Open Space Requirements for Hammocks 157 Public Access to Beaches 158 Public Expenditures in the Coastal Zone. 159 Natural Heritage and Park Program. 160 Protection of Upland Vegetation. 161 Clustering 161 Hurricane Evacuation Carrying Capacity. 162 Hurricanes 162 Preparation for Hurricanes 165 The Potential Impacts of Hurricanes on the Florida Keys 167 Evacuation and Refuges of Last Resort 169 Monroe County's Hurricane Evacuation Provisions 172 The Department's Review of Monroe County's Hurricane Evacuation Response in Objective 101.2. . . . . . . . . . . . . . . . . . . . .175 Intervenor Challenges. 177 Alleged Worthlessness of Undeveloped Property and Impact on Taxes. 179 Hurricane Evacuation Clearance Time Calculations 180 The Reasonableness of the Estimated Clearance Time Calculations. 187 Sham Device and Reasonableness of Monroe County's Hurricane Evacuation Goals. 189 Hurricane Shelters 191 The Board of County Commissioner's Meeting of May 4, 1991 198 The Administration Commission's Policy 216.1.19 . . . . . . . . . . . . . . . . . . .198 The Permit Allocation System 200 Monroe County's Decision to Employ a Permit Allocation System. 200 Provisions of the Remedial Plan Adopting the Permit Allocation System 203 Monroe County's Method of Allocating Allowable Growth Under the Permit Allocation System. 205 The Department's Review of the Permit Allocation System Under the Act. 210 The Department's Review of the Point System Under the Act. 210 Intervenor Challenges to the Permit Allocation System. 216 General Challenges to the Point System 216 Intervenor Challenges to Policies 101.5.4 and 101.5.5. 217 The Number of Permits and Subareas 218 The General Challenges to the Permit Allocation System 219 General Challenges to Policies 101.5.4 and 101.5.4. 222 Negative Points for Habitat, Habitat of Critical Concern and Species 222 Protected Species Habitat Map. 228 Coastal High Hazard Areas. 228 Platted Subdivisions 229 Affordable Housing 229 Transportation Levels of Service 229 Commercial Infill, and the Existence of Infrastructure 230 Points for TDRs. 230 Offshore Islands, Conservation Lands and Historic/Archaelogical Resources 232 Transferable Development Rights Program 233 The Current Transferable Development Rights Program. 233 Provisions of the Remedial Plan. 233 The Department's Review Under the Act. 236 D Intervenor Challenges. 238 E. Sender vs. Receiver Sites. 239 Land Use Categories. 242 Provisions of the Remedial Plan. 242 The Department's Review Under the Act. 243 Intervenor Challenges. 247 D. Policies 101.4.1 and 101.4.2 248 Maintenance of Community Character and Protection of Environmental Resources. 248 Residential Medium Land Use Category 249 Mixed Use/Commercial and Mixed Use/Commercial Fishing. 249 Disturbed Wetlands 251 Height Limitation. 251 The Future Land Use Map Series. 252 The Future Land Use Map Series Adopted by Monroe County 252 The Department's Review Under the Act. 252 Intervenor Challenges. 253 Are the Future Land Use Maps in Compliance With the Act 254 Vested Rights. 255 Provisions of the Remedial Plan. 255 The Department's Review Under the Act. 256 Intervenor Challenges. 258 Definition of Vested Rights. 258 Limited Application of Land Development Regulations to Property with Vested Rights 259 Miscellaneous Provisions of the Remedial Plan 260 Non-Residential Development. 260 The Monroe County Land Authority 263 Transient Residential Unit Moratorium. 264 Nonconforming Uses 266 The Coastal High Hazard Area 268 The Post-Disaster Redevelopment Plan 269 Siting Public Facilities 270 Intergovernmental Coordination 272 The County Geographic Information System 275 Public Expenditures for Services and Infrastructure 275 Affordable Housing 276 L. Goal 101 276 Roadway Improvements 277 Solid Waste Level of Service 278 Proposed Widening of U.S. Highway 1 on Big Pine Key 279 Public Participation 280 Capital Improvements 280 Monroe County's Commitment to Funding the Remedial Plan. 282 Monroe County's Determination of the Economic Impact Consequences of the Remedial Plan and Its Response Thereto 282 The Department's Review of Monroe County's Commitment to Funding the Remedial Plan. 284 Intervenor Challenges. 286 Monroe County's Lack of Commitment to Funding the Remedial Plan. 286 The Justification for Funding Assistance 287 Policy 1, as Modified by the Department and Policy 4 as Adopted by the Administration Commission are in Compliance with the Act. 288 Compliance with the State and Regional Plans. 291 The State Comprehensive Plan 291 The South Florida Regional Planning Council Policy Plan. 292 Constitutional Taking. 293
Conclusions For Petitioner, the Department of Community Affairs: Stephanie M. Gehres Assistant General Counsel David J. Russ Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 33050 For Respondent, Monroe County: Robert C. Apgar, Esquire David A. Theriaque, Esquire Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue Tallahassee, Florida 32301 For Intervenor, 1000 Friends of Florida, Inc.: Richard Grosso, Legal Director 1000 Friends of Florida Civil Law Clinic Shepard Broad Law Center NOVA Southeastern University 3305 College Aveneue Ft. Lauderdale, Florida 33314 For Intervenors, Henry Lee Morgenstern and Florida Wildlife Federation: David J. White, Esquire National Wildlife Federation 1401 Peachtree Street, Northeast Suite 240 Atlanta, Georgia 30309 For Intervenor, Friends of the Everglades, Inc.: Nancy Carroll Brown, President Friends of the Everglades, Inc. 9220 Southwest 166th Street Miami, Florida 33157 For Intervenor, Upper Keys Citizens Association: Dagny Johnson, President Upper Keys Citizens Association, Inc. 95,600 Overseas Highway Key Largo, Florida 33037 For Intervenors, George N. Kundtz and Florida Keys Citizens Coalition: Gregg Goldfarb, Esquire 19 West Flagler Street, Suite 707 Miami, Florida 33130 For Intervenor, The Wilderness Society: Debra S. Harrison Florida Keys Coordinator The Wilderness Society 8065 Overseas Highway Marathon, Florida 33050 For Intervenors, George DeCarion, et al.: James S. Mattson, Esquire Andrew M. Tobin, Esquire MATTSON & TOBIN Post Office Box 586 Key Largo, Florida 33037 STATEMENT OF THE ISSUES The issue in these cases is whether the remedial Monroe County Year 2010 Comprehensive Plan is "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding that the Monroe County Year 2010 Comprehensive Plan is not in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes, consistent with this Recommended Order. DONE and ORDERED this 17th day of July, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995. APPENDIX A Case Numbers 91-1932GM and 93-3371GM The parties have submitted proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed findings of fact of the parties, except 1000 Friends of Florida, George N. Kundtz and the Florida Keys Citizens' Coalition and the Upper Keys' Citizens' Association, have been accepted or rejected in this Appendix A. The Department's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 9-10, 24, 26, 31-34, 43, 60, 67, 73, 75, 78, 87-88, 91, 97-100, 102-103, 107, 160, 192, 224, 231, 237, 248, 256, 282, 288, 294, 300-303, 313, 316, 331, 338, 340, 355, 376 Proposed findings of fact which are rejected in whole or in part: 2 Not a finding of fact. 108 The last sentence is not supported by the weight of the evidence. Monroe County's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 3, Footnote 4, 42, 55, 93-94, 115, 125-127, 130, 173, 178, and 181. Proposed findings of fact which are rejected in whole or in part: 10 The third sentence is not supported by the weight of the evidence. 13 The second sentence to the next to last sentence is not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence and the rest of the proposed finding is not relevant. Not supported by the weight of the evidence. 40 The first sentence is not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. "DCA" did not amend Policy 1. Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 48 Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 58 The last three sentences are not supported by the weight of the evidence. 133 The last sentence is not supported by the weight of the evidence. 138 The first two sentences are not supported by the weight of the evidence. 146 The last three sentences are not relevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally true, the proposed finding ignores the fact that the evidence failed to prove that the lack of action by the Service is because the key deer have not reached their carrying capacity, which is the issue in these proceedings. The first two sentences are not supported by the weight of the evidence. The last sentence is not relevant. 157-159 Although generally correct summaries of some testimony, these proposed findings are not relevant. 160-163 These proposed findings are generally accepted. They do not, however, justify failing to recognize that the carrying capacity of the key deer has been exceeded. Not relevant. Not supported by the weight of the evidence. 170 The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. 189 The last sentence is not supported by the weight of the evidence. 191 The last sentence is not supported by the weight of the evidence. 193 The last sentence is not supported by the weight of the evidence. 195 The first sentence is not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 202 The first and last sentences are not supported by the weight of the evidence. 203 Not supported by the weight of the evidence. 204 Not supported by the weight of the evidence. 205 Not relevant. 205 Not relevant. DeCarion's Proposed Findings of Fact Findings of fact after number 53 have not been numbered in DeCarion's proposed order. They are referred to in this Appendix by the titles of the portion of the proposed order under which they appear. Proposed findings of fact which are hereby accepted in whole or in part: 1, 25-29, 32, 35-38 Proposed findings of fact which are rejected in whole or in part: 1 No evidence to support this proposed finding was presented. Standing was, however, stipulated to. 7-16 Although generally correct, the conclusions reached in these proposed findings are not supported by the weight of the evidence. 19 Not supported by the weight of the evidence. 24 The first sentence is not relevant. 43-44 While these proposed findings are an accurate reflection of some of the testimony in these proceedings, the conclusions suggested by DeCarion are not supported by the weight of the evidence. 46-48 Not supported by the weight of the evidence. 49-50 Not relevant. Not supported by the weight of the evidence. The first three sentences are not supported by the weight of the evidence. The third sentence is not supported by the weight of the evidence. "Five-Year Moratorium on Hotel-Motel Construction": The second paragraph is not supported by the weight of the evidence. "Marina Expansion Restrictions": The second paragraph is not supported by the weight of the evidence. Wilderness Society's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 7, 10, 12, 29, 34, 71-72, 81, 87, 138, 141 Proposed findings of fact which are rejected in whole or in part: 3-6 Not relevant. 73-75 Not relevant. 88-89 Not supported by the weight of the evidence. 102-103 Not relevant. Not relevant. The first paragraph is not supported by the weight of the evidence. 117-130 Not relevant. 147-248 Not relevant. 154 Not supported by the weight of the evidence. 159-161 Not relevant. APPENDIX B ORIGINAL AND REMEDIAL PLAN CHALLENGE CASES: CASE NUMBERS 91-1932GM AND 93-3371GM TABLE OF CONTENTS APPEARANCES. 3
Recommendation It is recommended that the permit be granted and that the crossing be opened subject to the type of crossing protection equipment agreed on by the parties DONE and ORDERED this 23 day of November, 1976, in Tallahassee Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Humes, Jr., Attorney Florida East Coast Railway Company One Malaga Street St. Augustine, Florida 32084 Ralph B. Wilson, Attorney St. Lucie County Post Office Box 700 Ft. Pierce, Florida 33450 George L. Waas, Attorney Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A, and on adoption of an ordinance repealing and rescinding Ordinance 2008-34, appended hereto as Exhibit B. On August 26, 2008, Respondent Clay County adopted an amendment to its comprehensive plan by Ordinance No. 2008-34 (Amendment). The Department reviewed the Amendment, determined that Ordinance No. 2008-34 did not meet the criteria for compliance set forth in Section 163.3184(1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not “in compliance.” The Department then instituted FINAL ORDER No. DCA09-GM-242 this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. On June 9, 2009, by adopting Ordinance No. 2009-23, the County repealed and rescinded the not “in compliance” Ordinance No. 2008-34. By virtue of this rescission, the instant controversy has been rendered moot and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department) .
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-242 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. il to each of the persons listed below on this day of , 2009. Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 J. A. Spejenkowski, Esquire Phillip Quaschnick, Esquire Office of the Attorney General PL 01- The Capitol Tallahassee, Florida 32399-3000 Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 Mark H. Scruby, Esquire Clay County Attorney Post Office Box 1366 Green Cove Springs, Florida 32043-1366 Col. Elizabeth Masters, Esquire Department of Military Affairs Florida National Guard PO Box 1008 St. Augustine, Florida 32085-1008 By Hand Delivery: Lynette Norr, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 FINAL ORDER No. DCA09-GM-242 Ordinance No. 2009- 23 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF CLAY COUNTY, FLORIDA, REPEALING AND RESCINDING ORDINANCE NO. 2008-34 ADOPTED ON AUGUST 26, 2008, WHICH ORDINANCE NO. 2008-34 HAD AMENDED THE CLAY COUNTY 2015 COMPREHENSIVE PLAN (THE ‘PLAN’) INIFIALLY ADOPTED PURSUANT TO THE REQUIREMENTS OF SECTION 163.3184, FLORIDA STATUTES, UNDER ORDINANCE NO. 92-03, AS SUBSEQUENTLY AMENDED, BY ADDRESSING LAND USE COMPATIBILITY WITH CAMP BLANDING (FUTURE LAND USE ELEMENT GOAL 2 AND ITS OBJECTIVES AND POLICIES); PROVIDING DIRECTIONS TO THE CLERK OF THE BOARD; PROVIDING AN EFFECTIVE DATE. WHEREAS, on January 23, 1992, the Board of County Commissioners of Clay County, Florida (the “Board”), adopted Ordinance No. 92-03 which adopted the Clay County 2001 Comprehensive Plan, which as subsequently amended is now referred to as the Clay County 2015 Comprehensive Plan (the “Plan”); and, WHEREAS, Section 163.3187, Florida Statutes, provides for the amendment of an adopted comprehensive plan; and, WHEREAS, Section 163.3184, Florida Statutes, outlines the procedure for the adoption of comprehensive plans or amendments thereto; and, WHEREAS, Clay County Board of County Commissioners adopted an amendment to the Plan on August 26, 2008, in Ordinance No. 2008-34 (the “Amendment”); and, : WHEREAS, ihe Department of Community Affairs (“DCA”) issued a Statement of Intent (the “SOI”’) and a Notice of Intent to find the Amendment adopted under Ordinance No. 2008-34 Not in Compliance on October 16, 2008; and, WHEREAS, DCA filed a Petition with the Division of Administrative Hearings, Case No. 08-5493GM on November 4, 2008 (the “Petition”), seeking a determination, consistent with the SOL, that the Amendment adopted under Ordinance No. 2008-34 is Not in Compliance within the meaning of Chapter 163, Part I, Florida Statutes, and Rule 9J-5, Florida Administrative Code; and, WHEREAS, as of the date of the adoption of this ordinance, the Petition remains pending; and, WHEREAS, by virtue of the pendency of the Petition, the Amendment has not taken effect; and, WHEREAS, the Board of County Commissioners desires hereby to provide for the repeal of Ordinance No. 2008-34 before the Amendment adopted thereunder becomes effective. Be It Ordained by the Board of County Commissioners of Clay County: Section 1, | Ordinance No. 2008-34 addressing Future Land Use Element Goal 2 and its Objectives and Policies is hereby repealed and rescinded. Section 2. _‘iIf any provision or portion of this ordinance is declared by any court of competent jurisdiction to be void, unconstitutional or unenforceable, then all remaining provisions and portions of this Ordinance shall remain in full force and effect. Section 3, | The Clerk of the Board of County Commissioners is authorized and directed within 10 days of the date of adoption of this ordinance to send certified, complete and accurate copies of this ordinance by certified mail, return receipt requested, to the Florida Department of Community Affairs, 2555 Shumard Oak Boulevard, Tallahassee, Florida, 32399- 2100 and the Northeast Florida Regional Planning Council, 9143 Phillips Highway, Suite 350, Jacksonville, Florida 32256, as specified in Section 163.3184(7), Florida Statutes. DULY ADOPTED by the Board of County Commissioners of Clay County, Florida, this 9! day of June, 2009. BOARD OF COUNTY COMMISSIONERS CLAY COUNTY, FLORIDA Wendell D. Davis Its Chairman ATTEST: Thereby certify that this document consisting of page(s] and further identified | as (Midiaaaes, 09.230 8 County\Manager and Clerk of the Sei oF County Co issioners a me and correct copy of the original maintained mm im the custody of Fritz Behring as County Manager and Ex-Officio Clerk of the Board of County Commissio 8s of Clay County, Floridy this_/S_ day of ene 2009” By: : , Deputy Clerk [Not Valid without the scal of the Board]
The Issue Whether a railroad crossing located at Florida East Coast Line Railroad Mile Post 175.49 should be closed.
Findings Of Fact The City of Rockledge, Florida is constructing a road in the incorporated limits of the city, known as Rovac Parkway. The road has not been completed, but when completed, it will consist of two ten foot driving lanes running east and two ten foot driving lanes running west with a twelve foot median strip and fourteen foot shoulders. This road is scheduled to intersect the Florida East Coast Line Railroad at Mile Post 175.57, and would cross the railroad with the same given dimensions as described above. After crossing the railroad, the Rovac Parkway would intersect with U.S. 1, also known as State Road 5. There is pending with the State of Florida, Department of Transportation, an application far driveway permit from the Rovac Parkway into U.S.1 (State Road 5), and a copy of the application for permit is found in the City's Exhibit #4 entered into evidence in this hearing. The area for which the application for at-grade crossing pertains is zoned R-2. In the general area of the proposed crossing it is intended that a industrial plant be built by Rovac, Inc., a firm from Maitland, Florida. The Florida East Coast Line Railroad which runs through the City of Rockledge is a single track line which runs roughly north and south and 66 percent of the population of the City of Rockledge, is located west of the Florida East Coast Line Railroad, with the remaining 34 percent found east of the Florida East Coast Line Railroad. The population in the City of Rockledge at the time of the hearing was 11,467 people. If the subject railroad crossing was open and the Rovac Parkway completed, approximately 35 percent of the 66 percent of the population lying west of the Florida East Coast Line Railroad would be using the at-grade crossing. The nearest at-grade crossing with signalization is found 1/2 mile north of the proposed crossing at Barton Road, and the implementation of an at-grade crossing at the subject location would releave the traffic at Barton Road and promote safe crossing of the Florida East Coast Line Railroad found in the City of Rockledge. Immediately north of the proposed at-grade cressing and identified as Nile Post 175.49 is an unprotected at-grade crossing. This crossing services a roofing company which services the public and also services a number of homes in the immediate vicinity of the existing crossing. If the new at-grade crossing at Mile Post 175.57 were permitted, the people who utilize the crossing at Mile Post 175.49 would be serviced by the new crossing. This service would be affected by an extension of an existing road known as Edwards Drive, from its present location to intersect with Rovac Parkway at right angles immediately west of the intersection of the proposed crossing with the Florida East Coast Line Railroad. The land that is necessary for the extension of Edwards Drive has been deeded to the City of Rockledge but has not been dedicated, A and public hearings have been held on the question of the service of those persons in the vicinity at the present at-grade crossing, in addition to public hearings on the extension of Edwards Drive. The location of the proposed crossing and the existing crossing at Mile Post 175.49, and their relationship to other landmarks in the area can be seen through the City's Exhibit #13, admitted into evidence. At the time of hearing, eight north and south bound freight trains and two local freight trains operated in the vicinity of the present crossing at Mile Post 175.49 and the contemplated crossing at Mile Post 175.57. The time schedule for the northbound freight trains is 3:00 A.M., 4:00 A.M., 5:00 A.M., 9:00 A.M., 2:00 P.M., 3:00 P.M., 4:00 P.M. and 7:00 P.M. The time schedule for the south bound freight trains is 10:45 A.M., 3:45 P.M., 7:00 P.M., 8:00 P.M. 9:00 P.M., 10:45 P.M., 11:45 P.M. and 6:30 A.M. The two local freight trains run at approximately 4:00 A.M. and 12:00 noon. The speed limit in the area of the crossing at Mile Post 175.49 and the proposed crossing at Mile Post 175.57 is 60 WH for the railroad. There is a left curve approximately 1,550 feet south of the proposed crossing. All parties to the hearing feel that it is necessary to have signalization at the proposed at-grade crossing. The witness for the City acknowledged the need for such an arrangement. The spokesman for the Railroad felt that the crossing should be controlled by an automatic system with flashing lights, ringing bells, and gates, which was train activated, and the witness of the Department of Transportation felt that the safety equipment at the proposed at-grade crossing should be a Type IV, with cantilevered flashing lights, ringing bells and gates. The some witnesses stressed that the existing crossing at Mile Post 175.49 was not signalized and therefore was much more dangerous than a signalized crossing, such as the proposed crossing at Mile Post 175.57. Exhibits which were offered in the course of the bearing which address the propriety of opening a crossing at Mile Post 175.57 and closing the crossing at Mile Post 175.49 were as follows: Exhibit #1, by the City, is a map of the City of Rockledge; Exhibit #2, by the City, is a comprehensive land use plan of the City; Exhibit #3, by the City, is a resolution of the City Council, City of Rockledge, proposing the opening of the crossing at Mile Post 175.57; Exhibit #6, by the City, a traffic count at the Barton crossing; Exhibit #11, by the City, a resolution of the Brevard Economic Development Commission concerning the impact of such a development; and Exhibit #12, by the City, a drawing of the extension of Edwards Drive and the construction of the Rovac Parkway, together with the present crossing and the proposed crossing.
Recommendation It is recommended that the application for closing the Florida East Coast Line Railroad crossing at Mile Post 175.49 be granted, contingent upon the opening of a signalized railroad crossing at Florida East Coast Line Railroad Mile Post 175.57. DONE and ENTERED this 2nd day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter C. Sheppard, Esquire City Attorney, for Rockledge 115 Harrison Street Cocoa, Florida 32922 Charles B. Evans, Esquire Florida East Coast Line Railroad One Malaga Street St. Augustine, Florida 32084 Philip Bennett, Esquire Office of Legal Operation Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32304
Findings Of Fact The Notice of Hearing was entered into evidence and said notice was amended to reflect that the distance of an existing crossing north of the proposed crossing was 2,208' + north rather than 1,500' + north. The application was also changed to reflect that the proposed roadway was to extend the limits of a right of way to 120' instead of 100'. The change would place the mile post at a slightly different location. Upon examination of the area and taking testimony from the three attorneys involved in this hearing, it is the findings of this Hearing Officer that the change in location and the change in the proposed roadway is not of sufficient consequence that the hearing should have been postponed and re- noticed. Inasmuch as the parties directly involved were present, the owners of the railroad were represented, the owners of the Petitioner corporation were represented, there were representatives from the County and from the Florida Department of Transportation. A re-notice with the minor changes in location and in the width of the right of way would have been sent to the same representatives. The Notice of Hearing met the requirements of notice of public hearing. Petitioner Suntree Development Corporation is proposing to construct a connector road between Wickham Road and U.S. 1 approximately 2,208' south of an existing two-lane signalized (warning bells, lights, and gates) road crossing on Pineda Avenue in south Brevard County, Florida. The proposed road is to be four-laned with 120 foot right of way including a 20 foot medium strip. The road would be an access between U.S. 1 and the Suntree Community, a new community on approximately 2,800 acres of land which is predicted to have approximately 35,000 to 40,000 people after total development which is estimated to be completed within a 15 year period. The road would be a limited access with acceleration and deacceleration lines on U.S. 1 with an estimated total anticipated average daily traffic of from 23,000 to 60,000 trips per day. The proposed crossing involves a Type IV cantilevered signalization with bells, flashing lights and gates to be activated by trains. Cost of signalization and maintenance is to be borne by the Suntree Development Corporation. Petitioner is the primary owner of all the lands involved, but does not own all of the right of way needed to construct the crossing. Building is presently limited to a country club, sewage treatment plants, about a mile of roadway and two single family homes under construction and plans for the construction of some forty homes within the next few months. The proposed crossing was approved by the Brevard County Commission with the understanding that the crossing at Pineda Avenue would not be closed. The Florida East Coast Railway track in this area is a single track with 18 through freight trains a day which travel about 60 m.p.h. at the proposed crossing location. Two local freights move at unscheduled times across the railroad tracks. The tracks in the vicinity of the proposed crossing is nearly straight. The Florida East Coast Railway Company owns the right of way over the tracks and opposes the opening of another crossing in such close proximity to the crossing at Pineda Avenue, at this time. Storage capacity or storage area is the area in which cars can stand while awaiting clearance to proceed. The proposed road will contain 1,800' of storage area with 850' on the Wickham Road side and 950' on the U.S. 1 side. Using the average daily traffic figure when the community is developed, as calculated by Petitioner, U.S. 1 would be blocked in 3.28 minutes. Using the average daily traffic figures when the community is developed, as calculated by the Florida Department of Transportation, U.S. 1 would be blocked in 1.27 minutes. The Florida Department of Transportation recommends that an overpass be constructed rather than the at-grade crossing. The Hearing Officer further finds: The Pineda Avenue crossing can serve the vehicular traffic demand at present; Petitioner's plans for development, if realized, will demand another railroad cross- ing to serve the community; The proposed at-grade crossing is in such close proximity to U.S. 1 that it would be hazardous to vehicular traffic on U.S. 1 and the proposed Suntree entry road when the community is developed.
