Findings Of Fact Pursuant to the parties' joint stipulation entered herein, the following relevant facts are found. On or about December 22, 1977, the Florida East Coast Railway Company filed an application to close the railroad crossing located at 125th Avenue, Goulds (Metro Dade County) Mile Post 386 + 3300'. In the area of the proposed crossing, the railway has scheduled triweekly service including the transportation of hazardous materials and work trains which also includes extra trains as the situation dictates. 128th Avenue, in the area of the subject crossing, extends from U.S. 1 north to Southwest 232nd Street, a distance of approximately 650 feet. This is an angular crossing of railroad which tends to reduce driver visibility. Traffic counts on this roadway indicate less than 700 cars a day use the road, with the heaviest usage occurring from 5:00 p.m. to 6:00 p.m. and 60 vehicles per minute pass over the crossing. The crossing at Southeast 232nd Street provides a right angle crossing about the same distance from the joint intersection of 128th Avenue and 232nd Street. Based on the development of 128th Avenue and a relatively short alternative route, the parties (the Railway and the County) viewed the level of safety as being increased if this crossing wore closed.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the application to close the at-grade railroad crossing at 128th Avenue, Goulds, Florida (Milepost 386 + 3300') be GRANTED. RECOMMENDED this 5th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1979.
Recommendation Close existing railroad crossing at Citrus Springs Boulevard and Seaboard Coastline Mile-post 763. DONE and ORDERED this 8th 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: George L. Waas, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Eugene R. Buzard, Esquire Seaboard Coastline Railroad 500 Water Street Jacksonville, Florida 32202 Mr. Gordan S. Burleson, Sr. Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 William Livingston, Esquire 3250 S. W. 3rd Avenue Miami, Florida James L. Shroads, Esquire 2350 S. W. 3rd Avenue Miami, Florida 33129
The Issue The issues are (1) whether a driveway connection on Respondent's property in Auburndale, Florida, is subject to closure because it poses safety concerns, and (2) whether a second driveway connection on Respondent's property should be modified because it fails to meet current access management standards.
Findings Of Fact A. Background The Department is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla. Stat. State Road 544 is a part of the state highway system. Since 1998, Respondent has owned a small, irregularly shaped parcel of property located at 502 Havendale Boulevard (State Road 544), Auburndale. The 0.46-acre parcel lies on the southeast corner of the intersection of State Road 544 and 42nd Street Northwest. Commercial establishments are located on the other three corners. In December 1998, Respondent leased the property to a tenant who operates Townsend Motors, a used car lot. The business has operated continuously at that location since that time. Aerial photographs reflect the lot has a capacity of around 30 or so vehicles. Most vehicles are displayed where the triangle-shaped lot comes to a point at the intersection and along the side of the lot facing State Road 544. Other vehicles are parked throughout the middle or rear of the lot. They are rearranged from time to time to enhance sales. To replace cars that are sold, the tenant typically buys a few cars at a time, which are delivered by a tow truck. Auto carriers and large trucks with trailers are not used to deliver vehicles. On the "rare" occasion in the past when a "big transport" made deliveries, the truck used the parking lot in a nearby Publix store to the east. State Road 544 is classified as a class 7 road. See Fla. Admin. Code R. 14-97.003(1), Table 2. That classification is assigned to roads where adjacent land is developed to the maximum feasible intensity and roadway widening is limited. See Fla. Admin. Code R. 14-97.003(2). The regulation provides that a driveway connection on a class 7 road must be at least 125 feet from an intersection and at least the same distance from other connections. This amount of spacing reduces driver confusion and the potential for rear-end collisions. Respondent's parcel has two driveway connections, less than 125 feet apart, facing State Road 544. The first connection is approximately 60 feet east of the intersection and is known as the western connection. The second connection lies further east and is known as the eastern connection. A third driveway connection is located on the western side of the parcel facing 42nd Street Northwest. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla Admin. Code 14-96.011(3)(a). Neither connection on State Road 544 is permitted. A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). Because the driveway connections were in place before 1988, they qualify for that status. To retain that status, however, a driveway must be consistently used by the owner. If use is discontinued for a period of one year or more, the use is considered abandoned. See Fla. Admin. Code R. 14-96.005(2)(c). If a driveway loses its grandfathered status through abandonment, the owner must apply for an access permit; otherwise, the driveway is subject to closure. A connection that retains its grandfathered status may still be modified if safety or operational issues exist. See Fla. Admin. Code R. 14- 96.011(4)(b)(the Department may modify a grandfathered connection "if such modification is determined to be necessary because the connection would jeopardize the safety of the public or have a negative impact on the operational characteristics of the state highway"). The parties agree the eastern driveway is grandfathered and has been consistently used by the tenant since 1998. There is a dispute over the status of the western driveway. The Department must allow owners of private properties adjoining a state road to have "reasonable access" to and from their property. See § 335.18(2)(a), Fla. Stat. As a general rule, limiting the number of driveway connections promotes better traffic movement and an increased level of safety and mobility for the system as a whole. To determine the number of connections necessary to establish reasonable access, the Department considers the projected connection and roadway traffic volumes, the type and intensity of the land use, the access management classification of the state road, and the standards for that classification. See Fla. Admin. Code R. 14-96.002(25). The Intersection Project The genesis of this dispute is a safety project (Project) at the intersection of State Road 544 and 42nd Street Northwest adjacent to Respondent's property. The Project was initiated after the Department received pedestrian complaints concerning safe travel across the intersection to access retail and food stores and a lack of crosswalks that comply with the Americans with Disabilities Act (ADA). The Project is only 0.038 miles in length and is limited to improvements at the intersection and the installation of sidewalks adjacent to Respondent's parcel and the three other corner commercial properties. There will be minimal impact to current vehicular patterns, and no increase in capacity is expected. Part of the design effort for the Project included an evaluation of existing driveway connections for potential modifications that will improve traffic safety or traffic operations on the roadway. This evaluation was limited to driveways on State Road 544, as the Department has no jurisdiction over driveways on 42nd Street Northwest, a local road. During the planning process, the Department noted that the western driveway is less than 125 feet from the intersection, violates spacing requirements, and raises safety concerns. Accordingly, the Department proposes to remove it, "saw it over," and install type F curb and gutter along the roadway. To comply with access management standards for class 7 roads, the Department also proposes to narrow the width of the eastern driveway from around 60 feet to 36 feet and "widen the wings somewhat" to allow larger vehicles to swing into and out of the car lot. (Wings are the sides of the driveway that slope down from the top of the curb to the street level.) No changes to the driveway facing 42nd Street Northwest are proposed, and no other driveways on State Road 544 near the intersection will be modified. The Department determined that no other practical alternatives to this action exist. Based on its evaluation of the property, the Department concluded that one direct connection on State Road 544 and an indirect connection on 42nd Street Northwest, a local road, provide reasonable access to the property. The Department intends to install new pedestrian signal poles and increase access to a nearby bus stop. The Project includes connected sidewalks for the four commercial properties on the corners of the intersection and enhanced special emphasis crosswalks that are designed to comply with the ADA and connect to the existing Publix sidewalk to the east. The high-visibility crosswalks, pedestrian signalization improvements, and removal of the western driveway will improve traffic movement through the intersection and enhance motorist, bicycle, and pedestrian safety. A Department Safety Office Benefit Cost Analysis revealed there were a total of 60 rear-end or angle crashes at the intersection during the five-year period 2010 through 2014 and that some could have been prevented with better signage and signals. The study projects 11 crashes will be avoided over the upcoming five-year period once the Project is completed. Besides reducing angle and rear-end crashes at the intersection, the proposed modifications will improve safety and operational conditions for pedestrians and motorists who will have greater connectivity to adjacent commercial properties. Respondent's Objections Respondent raises a number of objections to the Department's proposed action. She contends the western driveway is not abandoned, and even though it fails to meet current spacing requirements, it should not be closed; the proposed modification to the eastern driveway is not warranted by safety or operational concerns; the Department violated a number of statutory provisions during the process leading up to the issuance of the Notice; the proposed action will deny her and the tenant reasonable access to the property; and the changes will reduce the value of the property. The Western Connection To comply with insurance requirements, in 1998 the tenant erected bollards (short vertical posts embedded in the driveway) around most of the parcel to restrict access to the premises. Among other locations, bollards were placed along the entire back side of the western connection, blocking off vehicle access through that driveway. Bollards were also placed on roughly half of the back side of the eastern connection, leaving less than 30 feet open to allow vehicles to enter and exit the premises. Even though the bollards remained in place for almost 20 years, Respondent considers them nothing more than temporary fixtures, as they could be removed at any time by sawing them off at ground level or pulling them out of the concrete. The bollards remained in place until shortly after the Notice was received by Respondent in early January 2017. They were then removed by the tenant from the western driveway (and other areas). The tenant denies the Notice triggered their removal and maintains they were removed to provide "extra room for the FedEx and stuff like that to get in." He added that his current insurance company no longer requires bollards for security purposes. The Department contends the western driveway connection was abandoned because bollards blocked vehicle access through the driveway from December 1998 until January 2017. The tenant's testimony confirms this assertion. The tenant admits he has "not frequently [been] using the westernmost driveway," but maintains the connection was never abandoned, as Fedex trucks and the mail carrier regularly parked on the driveway apron, which lies between the roadway and the bollards. Emergency responders also use the apron when responding to accidents at the intersection, and disabled vehicles traveling eastbound on State Road 544 are pushed onto the apron. The bottom line is that even though the apron may have been used, the driveway itself was not, and the connection was basically used as a "pull-off." In fact, the tenant acknowledged that until January 2017, except for customers who used the parking lots of adjacent businesses located south of the parcel, all other customers used the eastern connection to access the property. The evidence supports a finding that, even if the car lot has remained in business continuously, and Respondent did not intend to abandon the driveway, for the reasons stated above, it was effectively abandoned for more than one year. Because the western driveway is only 60 feet from the intersection and violates spacing standards, it is subject to closure based on safety concerns. Without closure, additional traffic will enter and exit the car lot, there will be less driver reaction time for vehicles to stop, and it will increase the potential for more pedestrian injuries and vehicle crashes. The Eastern Connection The eastern driveway is 58 feet wide when measured at the back of the property line. Until January 2017, less than 30 feet were usable because bollards blocked the remainder of the connection. The maximum width for a class 7 driveway connection is determined by the number of vehicle trips per day that enter a property and whether the connection is in a rural or urban location. Under current design standards for urban locations, a 24-foot driveway connection is typically allowed. See Dep't Ex. 15. Assuming a large volume of traffic entering or exiting the driveway, a maximum of 36 feet may be permitted. Id. Although there is no evidence that a large volume of traffic enters or exits the premises, after speaking with the owner's representative, Mr. Combee, the Department agreed to increase the width from 24 feet to 36 feet and widen the sides (wings) to make the driveway more accessible by customers and vehicles making deliveries. By comparison, the nearby Publix store has a 24-foot connection to State Road 544, although it also has several indirect connections on the local streets. The modified connection is of sufficient length and size for vehicles to enter and exit the premises. Other Objections Notice Respondent contends the Department did not comply with section 335.199(1), Florida Statutes, before issuing the Notice. That subsection provides as follows: Whenever the Department of Transportation proposes any project on the State Highway System which will divide a state highway, erect median barriers modifying currently available vehicle turning movements, or have the effect of closing or modifying an existing access to an abutting property owner, the department shall notify all affected property owners, municipalities, and counties at least 180 days before the design of the project is finalized. The department's notice shall provide a written explanation regarding the need for the project and indicate that all affected parties will be given an opportunity to provide comments to the department regarding potential impacts of the change. Subsection (3) of the statute also requires at least one public hearing in the jurisdiction where the project is located. The Department has always construed this provision as applying only to large projects that involve an expenditure of "upward of a million dollars" and take out or block medians, remove turn lanes, or reconfigure intersections in conjunction with a modification or closure of a driveway connection. Because the Project entails the expenditure of $119,936.00, and only new curbs, sidewalks, striping, and pedestrian signals are contemplated, the Department considers it a "very limited scope" project and one that does not implicate the statute. For small projects such as this, the Department provides preliminary notification to the property owner and tenant, if any; a written notice setting forth the proposed agency action and the reason for the changes; an opportunity for the owner to meet with Department representatives to express concerns; notice to the affected local governments; and ultimately an administrative hearing, if one is requested. This process complies with section 335.1825(3), which only requires "reasonable notice" to the owner before closing an unpermitted connection. Before the Notice was issued, oral notice regarding the Project was given to the tenant by a Department representative. During the meeting, the tenant told the representative that he "didn't mind" if the western driveway was removed. Also, a Department representative spoke by telephone with Mr. Combee before the Notice was issued, but Mr. Combee says he was under the impression the Department was only seeking to close the connection on 42nd Street Northwest. An on-site meeting with Mr. Combee and his counsel was conducted in February 2017. Based on concerns expressed by Mr. Combee, the Department agreed to increase the width of the eastern driveway from 24 to 36 feet and widen the wings to provide greater accessibility into and out of the lot. Besides meeting with the tenant and Mr. Combee, the Department informed the City of Auburndale and Polk County about the intersection project and asked them whether any comments had been received from the public regarding the intersection. Assuming arguendo that section 335.199 applies to every project involving the closure or modification of a driveway connection, regardless of its size, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Lack of an Engineering Study Respondent contends the Department violated Florida Administrative Code Rule 14-96.011(4)(b) by failing to conduct a formal engineering study to substantiate the safety and operational concerns for closing and modifying the connections. In lieu of a signed and sealed engineering study, the Department performed a Safety Cost Benefit Analysis documenting the five-year crash history at the intersection. The study also includes an engineer's estimate of the type and cost of specific improvements planned to improve the safety of motorists and pedestrians at the intersection. See Resp. Ex. 5. Nothing in rule 14-96.011(4) or (5) requires that a formal engineering study be conducted before closing an unpermitted connection or modifying a grandfathered connection. In fact, the rule cited by Respondent provides the "problem may be substantiated by an engineering study signed, sealed, and dated by a professional engineer registered in the State of Florida." (emphasis added). Therefore, both driveways are subject to removal or modification without any type of formal study being conducted. Here, the Department relied on a study of the crash history at the intersection, access management standards for connections on class 7 roadways, and safety concerns expressed by members of the public. These measures are adequate to support the Department's proposed action. Reasonable Access Respondent contends the Department's proposed action leaves her without "reasonable access" to the property. To support this contention, her engineering expert opined that both driveways on State Road 544 are necessary in order for large trucks making deliveries to enter and exit the lot. The engineer assumed incorrectly, however, that semi-trucks and trailers now access the property to make deliveries, and a 36-foot driveway will be too small to accommodate that type of vehicle. He also opined that large trucks cannot access the property through the 42nd Street Northwest connection because a building is located in the middle of the parcel and prevents them from being driven across the lot and exiting through the eastern connection. The expert agrees a 36-foot driveway provides reasonable access for automobiles and small trucks. The evidence shows that replacement vehicles are normally delivered by a tow truck hauling no more than one or two at a time and large semi-trucks and trailers do not make deliveries at the property. Assuming that the mail carrier or FedEx wish to continue parking where the apron now sits while they deliver the mail or a package, they can do so by pulling over the six-inch curb and parking on the grass. The evidence supports a finding that one direct access point on State Road 544 and one indirect access point on 42nd Street Northwest provide reasonable access to the property and result in safer and more efficient access to the state highway system. Economic Concerns Respondent contends the value of her property will be diminished as a result of the closure of the western connection. However, economic injury is not a statutory consideration for closing or modifying connections, and redress for that type of injury, if any, lies in another forum. Management of Project The Department routinely allows construction project administrators who are not professional engineers to manage the day-to-day work on intersection projects such as this. While the project plans were signed and sealed by a professional engineer, who is the project engineer of record, a construction project administrator, Mr. Freeman, will take the plans and "make it a reality in the field." Respondent contends Mr. Freeman is violating section 471.003(1) by performing certain investigative, evaluating, planning, and designing activities without an engineering license. Assuming arguendo this is true, jurisdiction over that issue lies with the Florida Board of Professional Engineers and not the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order approving the closure of Respondent's western driveway and modification of the eastern driveway, as part of the Department's State Road 544 Safety Project. DONE AND ENTERED this 9th day of June, 2017, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2017. COPIES FURNISHED: Michael J. Dew, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Richard E. Shine, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) David W. Holloway, Esquire David W. Holloway, P.A. 13100 Park Boulevard, Suite B Seminole, Florida 33776-3539 (eServed)
The Issue Whether the at-grade crossing in the vicinity of Lincoln Avenue and Florida East Coast Railway Company Mile Post 104 + 172' in Ormond Beach, Florida should be closed.
Findings Of Fact By application the Florida East Coast Railway Company seeks a permit to close an existing at-grade public railroad crossing located in Volusia County, Florida, at Florida East Coast Railway Company Mile Post 104 + 172' in the vicinity of Lincoln Avenue. There exists a standard cross buck sign or fixed sign at the subject crossing and there is a vehicular stop sign on each side of the crossing. There is a total of sixteen freight rail movements and a total of two local freight rail movements crossing each day. In addition to these scheduled moves there are a few unscheduled movements such as work trains. The speed limit for this area is 35 m.p.h. A 24-hour traffic survey was set up on Lincoln Avenue just west of the railroad-tracks where the number of vehicles counted was 567. The 24-hour period started at 11:00 a.m. on November 18, 1975, and continued until 11:00 a.m. on November 19, 1975. There is no sight problem from south to north but from north to south there is a curve that bears to the right coming into Lincoln Avenue which gives a railroad sight problem. For vehicles there is a sight problem going from west to east, but no sight problem going from east to west. There have been four documented accidents at the crossing: one in 1962, one in 1965, and two in 1973. There has been expansion of the city to the areas particularly west of the railroad tracks and north of the crossing at State Road Lincoln Avenue is the only crossing between State Road 40 and State Road 5A. It is approximately 1.5 miles. There is a need for a railroad crossing in the area as an alternate to the crossing on State Road 40. The railroad suggests bells, flashing lights and gates, in the event this application to close is not permitted. The Department of Transportation recommends flashing lights and bells, suggesting that gates would be better, but such signalization adequate. The City did not recommend a type of signalization but did recommend that the permit to close be denied. The Hearing Officer further finds: The permit should be denied inasmuch as there is a need for the crossing; The crossing should be signalized to make it less hazardess; Signalization without gates is adequate.
Findings Of Fact In 1981, Petitioners Edward S. Coley and his wife, Juanita P. Coley, purchased lot 8, block A, Camp Creek Lake Subdivision, in Walton County, Florida. The lot is located on the beach at the Gulf of Mexico in a platted subdivision. Petitioners purchased the property for the purpose of building a beach house that would eventually be a retirement home. (Testimony of E. Coley Petitioners' Exhibit 1, Respondent's Exhibit 1) At the time Petitioners purchased the lot, there were a number of existing dwellings to the east of the lot and several to the west. The habitable portions of these dwellings for the most part were located at or near the existing coastal construction setback line that had been established by Respondent in 1975 to provide protection to the dune area of the beach. Although Petitioners planned to locate their two-story dwelling approximately on the then-existing setback line, they had not done so at the time a new coastal construction control line was established in December, 1982, which resulted in moving the setback line further landward for a distance of some sixty two feet. The county coastal construction control lines are established under the authority of Section 161.053, Florida Statutes, and are intended to define the portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge. Construction seaward of the line is prohibited unless a permit is obtained from Respondent. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibit 1, 5, Respondent's Exhibit 1, 20) On September 19, 1983, Petitioners filed an application with Respondent to construct a 2000 square foot two-story house on their lot. The dwelling was designed to have upper and lower decks facing the Gulf, with a dune walkover structure seaward, and a three-car garage attached to the main house by a breezeway. As planned, the seaward extent of the habitable portion of the house would be located some eight feet landward of the old setback line and approximately 62 feet seaward of the existing construction control line. After processing the application, Respondent's Chief of the Bureau of Coastal Engineering and Regulation advised Petitioners by letter dated January 5, 1984 that a staff recommendation to deny the application would be presented to the head of the Department, consisting of the Governor and Cabinet, on January 17, 1984, and advising Petitioners of their rights to a Chapter 120 hearing. By letter of January 11, 1984, Petitioners did request a hearing pursuant to Section 120.57, F.S., and, on January 17, Mr. Coley appeared before the Governor and Cabinet to support approval of his application. On March 20, 1984, the Governor and Cabinet approved the minutes of its January 17th meeting wherein the apparent basis for the proposed denial of Petitioners' application was stated as follows: The staff is concerned that the applicant is not effectively utilizing the property landward of the control line and that the proposed encroachment is unnecessary and not justified. Prior to the preparation of the structural plans, the staff recommended a 25 foot landward relocation of the structure in order to more effectively utilize the property landward of the control line and provide an effective, protective setback from the active dune area. Presently, there exists approximately 85 feet between the landwardmost portion of the proposed garage structure and the landward property line. The recommended 25 foot landward location represents a compromise that acknowledges the line of existing construction in the immediate area . . . . * * * Dr. Gissendanner stated that this was the first building permitted in this area. All the other buildings there had been built before a permit was required. Now it was necessary to take into consideration the new coastal construction line and the accumulative effect which the new law imposed. The problem was that the Department did not want to start a precedent to allow the house to be built out there and have other people come in and want to build along the same line. By letter of September 29, 1983, Respondent had advised petitioners that any structure of the size proposed by Petitioners located within the dune region would adversely impact and limit the extent of dune recovery following severe erosion associated with a major storm event. The letter proposed a compromise in location of Petitioners' dwelling to a point approximately 25 feet landward of the desired location, thus placing the seawardmost portion of the habitable structure approximately 35 feet seaward of the construction control line. This was stated to be a viable compromise since there existed sufficient room to locate the entire structure, including garage, landward of the control line. Petitioners however declined to accept such a compromise in the belief that to do so would eliminate any view of the Gulf over the dune line except from the upstairs deck of the proposed structure. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 1-2, 9, Respondent's Exhibits 1-8, 13-16) The height of the dune line on petitioners' lot is approximately 27 feet high, which is the same elevation as the first floor of the proposed dwelling at the desired site. The proposed second floor would be 9 feet above the crest of the dune. However, if placement of the structure was moved landward 25 feet, it would be impossible to see over the dune area from the ground floor of the house. Additionally, the view of the beach area would be obstructed by the homes to the east and west of Petitioners' lot. The proposed dwelling is designed for the maximum allowable height of 30 feet. Under deed covenants and restrictions, a variance would have to be obtained to build a taller structure. The value of Petitioners' property would undoubtedly be diminished to some extent if the house was built substantially behind the adjacent dwellings because of the restricted view of the beach and water area. (Testimony of E. Coley, Evans, Petitioners' Exhibits 1, 8) Although there would be no adverse impact on adjacent properties if Petitioners were permitted to build in the desired location, such proposed siting could have an adverse impact on the dune system as a result of a major storm event since the dwelling would be located on the seaward edge of existing vegetation at the landward toe of the dune. If the location were to be moved 25 feet further landward, there would be additional vegetation to facilitate recovery of the system after such a storm. Respondent's Chief of the Bureau of Coastal Engineering and Regulation also believes that the existing structures in that area would be demolished as a result of a major storm, but Petitioners' house, which is designed to withstand a 100-year storm event, would remain, thus impeding full recovery of the dune system. (Testimony of Moore, Flack, Clark, Respondent's Exhibits 9-12, 19, 21) Respondent has permitted several structures in the past which were located seaward of the coastal construction control line, but these were approved because the impact on the dune system was minimized in those locations, and also because the applicants had utilized all of the upland property possible on their lots. (Testimony of E. Coley, Moore, Clark, Petitioners' Exhibits 3-4, 6-7, 9-10) Although conflicting evidence was received as to whether or not the existing structures east of Petitioners lot constitute a "reasonably continuous and uniform construction line," it is found that although minor variations exist in the location of individual dwellings, they do meet the quoted statutory standard set forth in Section 161.053(4)(b), Florida Statutes. The existing structures have not been affected by erosion. (Testimony of E. Coley, Evans, Moore, Flack, Clark, Petitioner's Exhibit 1) Petitioners' structural design meets Respondent's technical requirements subject to standard conditions of the Department. (Testimony of Moore, Evans, Flack, Petitioners' Exhibit 2) The Departmental rules cited by Respondent as the authority for the proposed denial of Petitioners' application are Rules 16B-33.05(1), (2), (6), 33.06(2), and 33.07(2), Florida Administrative Code. (Petitioners' Exhibit 4.)
The Issue Whether Florida Administrative Code Rule 62B- 33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority? The Rule requires that an application for a permit for construction seaward of a coastal construction control line ("CCCL") contain "written evidence, provided by the appropriate local government agency . . ., that the proposed activity . . . does not contravene local setback requirements, zoning, or building codes and is consistent with the State approved Local Comprehensive Plan." Whether a statement alleged to have been made by an employee of the Bureau of Beaches and Wetland Resources in the Department of Environmental Protection ("DEP" or "the Department") violated Section 120.54(1)(a), Florida Statutes? The alleged statement is to the effect that in determining if structures littoral to the coast have established a continuous construction line closer to the mean high water line than the CCCL, the Department uses a 1000-foot distance to structures on either side of the proposed project.
Findings Of Fact The CCCL and Continuous Lines of Construction The CCCL The Legislature has declared it in the public interest to preserve and protect Florida's beaches and the coastal barrier dunes adjacent to them. See § 161.053(1)(a), Fla. Stat. In furtherance of this intent, the Department is empowered to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting the Atlantic Ocean . . .". id., "after it has been determined from a comprehensive engineering study and topographic study that the establishment of such control lines is necessary for the protection of upland properties and the control of beach erosion." § 161.053(2)(a), Fla. Stat. The Department defines "Coastal Construction Control Line" or "CCCL" as "the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which [delineates] that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Fla. Admin. Code R. 62B-33.002(12). Brevard County's CCCL bisects property along the Atlantic Ocean owned by Petitioner and her husband. Continuous Lines of Construction The Department is mandated to exempt from some regulation certain construction that is seaward of a CCCL. See, e.g., Section 161.053(2)(b)1., Florida Statutes, which relates to construction landward of beach armoring. In addition, the Department is granted discretion to permit construction seaward of a CCCL in other instances. One such instance relates to construction landward of "a reasonably continuous and uniform construction line," Section 161.053(5)(b), Florida Statutes (a "Continuous Line of Construction") that is seaward of the CCCL. Subsection 161.053(5)(b): (5) Except in those areas where local zoning and building codes have been established pursuant to sub-section (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: * * * (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the coastal construction control lines], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . . This proceeding involves a permit for construction seaward of the CCCL and landward or on a Continuous Line of Construction. The lines are in Brevard County where property is owned by both Petitioner and Intervenors, who, together with DEP, comprise the parties to this proceeding. The Parties Petitioner Carol C. Pope resides part-time in a duplex along Wilson Avenue on Cape Canaveral in Brevard County. She owns this oceanfront property, littoral to the Atlantic Ocean, with her husband James M. Pope. Although the property has a Cocoa Beach mailing address, it is not within the city limits of Cocoa Beach. The pre-hearing stipulation filed by all of the parties offers this account of the property's location: "The Pope's property is Lot 11, Block 101, Avon by the Sea, as described in Plat Book 3 page 7, [presumably in the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." Ms. Pope is the Petitioner in both of the consolidated cases that comprise this proceeding. The Department Among many duties related to environmental protection, the Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053(21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." Two employees of the Department Tony McNeal, P.E., and Srivinas Tammisetti, P.E., testified at hearing. Both are engineers and both are involved with the Coastal Construction Control Line Program. Mr. McNeal is the program administrator. Mr. Tammisetti is a Professional Engineer II with the Department's Bureau of Beaches and Wetland Resources (the "Bureau"). He is responsible for "coastal armoring projects for the entire state" (tr. 52) and he is the head engineer for Lee County. In his capacity with the Bureau, Mr. Tammisetti reviews applications for activities seaward of the coastal construction control line. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083 (the "Permit") issued by the Department in its order filed September 19, 2003. The Permit is the subject of the administrative proceeding initiated by Ms. Pope in DOAH Case No. 03-3981. Events Preceding the Permit's Issuance The Rays applied to DEP for a permit to conduct activities seaward of the CCCL, including construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry walls, and an exfiltration system. The Department approved the application. The Department's order issuing the Permit is titled "Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes." Intervenor's Ex. 1, Tab 6, pg. 1. The Permit acknowledges the application is for "authorization to conduct . . . activities seaward of the coastal construction line" and describes the location of the proposed project as "landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area [the Continuous Line of Construction]." Id. While the application was pending before DEP, Ms. Pope visited the offices of the Department in Tallahassee several times. During the first visit (June 23, 2003), Ms. Pope reviewed the permit file and met with Mr. Tamisetti. At one point in the meeting, Ms. Pope asked Mr. Tamisetti how he determines the existence of Continuous Construction Lines. Ms. Pope testified at hearing that Mr. Tamisetti's answer was to the effect that "we look at a thousand feet on either side of the proposed structure." (Tr. 20). These were not necessarily Mr. Tamisetti's exact words but it is clear from the record that the substance of Ms. Pope's claim of what was said is correct; Mr. Tamisetti told Ms. Pope that the Department uses a thousand-foot distance on either side of a proposed structure in order to determine whether existing structures have established a Continuous Line of Construction seaward of the CCCL. The Rule Among the rules in the chapter for which Section 161.053 served as the sole specific authority is Rule 62B-33.008 (the "Rule"). It bears the catchline "Permit Application Requirements and Procedures." The Petition of Ms. Pope in Case No. 03-3860RX challenges subsection (d) of Section (4) of the Rule: (4) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) . . . from the Department . . . shall submit two copies of a completed application form. * * * The application form shall contain the following specific information: * * * (d) Written evidence, provided by the appropriate local governmental agency having jurisdiction over the activity, that the proposed activity, as submitted to the Office, does not contravene local setback requirements, zoning, or building codes and is consistent with the state approved Local Comprehensive Plan. Fla. Admin. Code R. 62B-33.008(4)(d). The Rule implements Section 161.052, "Coastal construction and excavation; regulation" as well as Section 161.053. Petitioner contends that the quoted portion of the Rule should be determined to be invalid because, while the statute directs that DEP in issuing permits of the kind obtained by the Rays "shall not contravene" local setbacks and building and zoning codes, it does not authorize DEP "to rely upon a letter mailed to an applicant from someone employed by an "appropriate" local government to prove that an activity would comply with the statutory directive." Proposed Final Order submitted by Petitioner, p. 18. As pointed out by Ms. Pope in her Proposed Final Order, DEP does not maintain nor does it require applicants for permits related to activity seaward of a CCCL to submit comprehensive land use plans, local setback requirements, zoning or building codes of counties and municipalities along Florida's coast. Instead, as sanctioned (in fact, required) by the Rule, DEP allows applicants to submit written evidence provided by the local government that the proposed activity does not contravene the enumerated regulations and is consistent with the local comprehensive plan. The parties have stipulated that the Department has not delegated its permitting authority under Chapter 161, Florida Statutes, to Brevard County. The Statement The statement made by Mr. Tamisetti (the "Statement") is similar to one he has made many times over the course of his employment with the Department. Without reservation, Mr. Tamisetti testified as much at hearing. The Statement has been interpreted as DEP's common method of prescribing lines of continuous construction by at least one member of the public. A professional engineer who conducts coastal engineering analysis, opined in writing to one of his clients that: The DEP has commonly prescribed the "line of continuous construction" by the line established by the average seaward limits of the foundations of the structures within 1000? feet north and 1000? feet south of the subject property or the seaward limits of the most seaward structures within 1000? feet north and south of the subject property Petitioner's Ex. 14, p. 1 following the cover letter. Mr. Tamisetti maintained at hearing, however, that the statement he made to Ms. Pope was not a common method for determining a Continuous Construction Line. Rather, the Statement constituted a starting point for those who inquired about how such lines were determined to exist. The Department does not contend otherwise. In the Pre-hearing Stipulation executed by all parties, the Department's position with regard to the Statement of Mr. Tamisetti is found on page 4: "The statement [that DEP uses a 1000-foot distance on either side of a proposed structure to establish a Continuous Line of Construction] is merely a guideline to allow applicants and their engineers a starting place for providing the Department information regarding the line of construction." The reason for the Statement was discussed by Mr. Tamisetti in his testimony. When a concerned party poses the question of how DEP would determine a Continuous Line of Construction as to a certain site, the question can only be definitively answered by asking questions of that party, in turn, and requesting sufficient data. Responding might entail costs prohibitive to the party. "A thousand feet" is offered as "a starting point . . . to give them something" (tr. 61) as an estimate for whether to pursue the effort to have such a line established. In one project, Mr. Tamisetti offered, the distance from a proposed structure to an existing structure might be "500 feet"; in another "2000 feet." (Tr. 61, 62). Ultimately, Mr. Tamisetti insisted the determination is site specific and cannot be made across the board on the basis of a measurement of 1000 feet. The Permit's Relationship to the Statement Ms. Pope produced evidence of the location of a Continuous Line of Construction determined by DEP to exist for purposes of the Ray's permit, DEP Permit No. BE-1083. She concludes in her proposed final order: [T]he line that DEP depicted approximates the line that would be derived by drawing a line from existing structures within 1000 feet on either side of the structure proposed in BE-1083. (citation to record omitted) The derivation of the line of continuous construction can only be a result of using the foundations of building within 1000-feet on either side of the proposed Michelina Condominium, as readily seen on the DEP April 2002 aerial photograph . . . Proposed Final Order, submitted by Petitioner, p. 8. Furthermore, Ms. Pope points out DEP has two rules relevant to the interrelationship between the permit and her claim that the Statement is a rule in violation of Section 120.54(1)(a), Florida Statutes. Florida Administrative Code Rule 62B-33.005(4), in her view, requires that applications for permits to conduct activity seaward of a CCCL "be 'clearly justified' by the applicant." Id. "Secondly," she asserts, DEP has an existing rule that requires applications to include surveys that depict accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line. Rule 62B- 33.008(4)(f)15, F.A.C. Id., at 8-9. These rules relate, obviously, to the Permit Case. Coupled with the location of the Continuous Line of Construction determined by DEP with regard to the Rays' application for purpose of the un-promulgated rule challenge, however, they do not overcome other evidence as to how the Bureau determines the existence of Continuous Lines of Construction seaward of CCCLs. That evidence is the testimony of Mr. McNeal, the head of DEP's Coastal Construction Control Line Program. The Testimony of Mr. McNeal Ms. Pope's claim that the only credible evidence in the case demonstrates that the Statement is an un-promulgated rule overlooks convincing credible evidence provided by Mr. McNeal. Mr. McNeal's testimony shows that the Statement is not reflective of a policy followed by DEP that creates rights or imposes duties upon the regulated. It is not reflective of a policy of the Bureau of Beaches and Wetland Resources that does so either. Nor is it reflective of such a policy of the Bureau's Coastal Construction Control Line Program. As explained by Mr. McNeal, if an applicant would like to build on a Continuous Construction Line seaward of the CCCL, the applicant typically must demonstrate that the Continuous Construction Line exists by data provided with the application. Petitioner's Exhibit 7, entitled "Request for Additional Information" was identified by Mr. McNeal at hearing as "a template for our standard information package that comes with the application." (Tr. 40). "The items of information listed [on the request] are numbered to correspond with the item numbers on the application form." Petitioner's Ex. 7, p. 1. The following appears under Item 9: Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of application. The topographic survey drawing shall include the following specific information: * * * - Accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of 161.053(5)(b), . . . Florida Statutes . . . (Id., pps. 2-3). There is no reference to the "1000 feet" measurement in the Bureau's Request for Additional Information. Furthermore, when an application is submitted that is incomplete with regard to the location of existing structures, the Department does not always resort to a request for additional information. The Department has an extensive database that includes aerial photographs, GIS images, and topographic information collected with regard to DEP reference monuments spaced along the shoreline. On occasion, the DEP database is sufficient to determine whether such a line exists without additional information provided by the applicant. When a determination of a Continuous Line of Construction is made by DEP, it is made specific to the site of proposed construction on the basis of the information submitted by the applicant or on the basis of publicly held data. The determination is not made on the basis of Mr. Tamisetti's statement to Ms. Pope or on the basis of unwritten policy related to existing structures within 1000 feet of the proposed structures. A Rule of Thumb for Prospective Applicants Mr. McNeal's testimony sheds direct light on the actual practice of DEP and the Bureau of Beaches and Wetland Resources in determining the existence and location of Continuous Lines of Construction. When the Petitioner's case is measured against the Department's, the best for Petitioner that can be said of the Statement is that it is precisely what Mr. Tamisetti claims. It is a "rule of thumb," and a rough one at that, for whether it is worthwhile for a party to pursue the establishment of a Continuous Construction Line in order to conduct activity, including construction, seaward of an established CCCL. It does not constitute an agency statement of general applicability that meets the definition of a "rule" in the Administrative Procedure Act and that is subject to the Act's rule-making requirements.
Findings Of Fact Petitioner, Wingfield Development Company (WDC), is a real estate development company located at 390 North Orange Avenue, Suite 1800, Orlando, Florida. In late 1982 or early 1983, WDC began developing a resort project known as Turtleback Beach Club (the project) in Indian River County. When completed, the project will consist of a 256 unit hotel, 68 villas, two swimming pools, a number of cabanas, a reverse-osmosis water plant, and other amenities which will cost approximately $50 million. All structures were designed to be constructed landward of the then existing coastal construction control line (CCCL). The date of establishment of the original CCCL is not of record. From late 1982 or early 1983 until 1987, WDC expended approximately $1.4 million on the project. Among the expenditures were the preparation of extensive cite and design plans, the installation of off-site utilities, and the fabrication and installation of some two hundred pilings and a number of pile caps. All such work was performed landward of the then existing CCCL. On March 5, 1987 respondent, Department of Natural Resources (DNR), reestablished the CCCL in Indian, River County. The new CCCL was more landward than the original CCCL. This resulted in several portions of the project, including all or parts of the villa and hotel, being seaward of the new CCCL. In November 1987 WDC was advised by the Indian River County Building Department to cease construction activities because, after consultation with DNR, it has decided not to make any further inspections. On April 4, 1988 DNR advised WDC by letter that, after making a site review of the project, it had determined that: the foundations for the hotel structure and the cabana located in the southeast portion of the property were `under construction' pursuant to the definition contained in Subsection 16B-33.002(56), Florida Administrative Code, at the time of the reestablishment of the coastal construction control line on March 4, 1987, ... (and that) the remaining five proposed cabana structures located on the south half of the property and shown to be seaward of the new control line, the proposed swimming pools, decks and gazebos, parking areas also shown to be seaward of the new control line and any other proposed landscaping work were not `under construction' pursuant to the definition. The letter added that the: staff shall consider the exemption status for the hotel and the one cabana under construction void if construction activity on these structures remains idle for a period of six months from the date of receipt of this exemption determination and prior to completion of the structures. Finally, the letter required petitioner to submit: a proposed `build out' schedule (that) would entail providing (the) staff with specifics of where (petitioner) expect(s) the overall project to be at ninety (90) day intervals up through completion of the structures located seaward of the coastal construction line. The staff feels that two years should be more than ample time with which to complete that portion of the project located seaward of the coastal construction control line. Progress must be maintained on each structure during each six month interval. Additionally, should your project fall short of any ninety day progress levels to be referenced in your `build out' plan, your project will lose it's (sic) exemption status and all remaining portions of the project, seaward of the control line will require a permit from the (DNR) in accordance with the provisions of Section 161.053, Florida Statutes. Because the letter offered a point of entry to contest the proposed agency action, WDC requested a section 120.57(1) hearing. At the same time, it continued construction on the project. On November 25, 1988 DNR issued further proposed agency action in the form of a letter advising WDC that, based upon a review of WDC's exemption file, the exempt status of the project had been "lost" and that any further construction activity seaward of the CCCL would require a permit from DNR under section 161.053. The receipt of this advice prompted WDC to file a second request for a section 120.57(1) hearing and a petition seeking to invalidate what it perceived to be an illicit rule, or in the alternative, the two rules from which the statements were drawn. WDC contends that DNR's requirement that, once a project is given an exempt status, it must remain under active construction and the owner must submit for DNR's approval a "build out" schedule, is an illicit rule since such a requirement is not contained in DNR's rules. Under state law, as implemented by DNR, no construction activity may take place seaward of a CCCL without a permit from DNR. However, any projects that are under construction at the time of the establishment of the CCCL are exempt from such permitting requirements. Under the current DNR organizational structure, the Division of Beaches and Shores (Division) is charged with the responsibility of administering and enforcing the CCCL regulatory program. The Division's Bureau of Coastal Engineering and Regulation has been assigned the task of performing a site review of all projects for which local building permits have been issued at the time of the establishment of a CCCL. If a project is under construction, as defined in DNR rules, at the time of the establishment of the CCCL, the owner may continue his activities even if the structures are seaward of the CCCL. A determination as to whether a structure is under construction at the time a CCCL is reset does not take into consideration the impacts the structure will have on the beach and dune system. This is because DNR considers such a determination to be regulatory in nature, and such impacts would be irrevelant to that decision. The Division construes its authority as also permitting it to require an exempt project to remain under active construction once it receives an exempt status. It does so on the notion that this insures that the exemption status was obtained in good faith, and the builder intended to go forward with the construction in a timely manner and as originally conceived. It has been DNR's experience that some property owners have engaged in a minimal construction program to circumvent the regulatory process. To prevent this, DNR has imposed a requirement that, if construction activity ceases for a period of six months or more, the exempt status will be lost. A six month time period was used because DNR realized that short, unforeseeable delays of less than six months were not uncommon. This policy has been uniformly applied, without discretion to agency personnel to do otherwise, on all projects classified as exempt. In addition, DNR has required project owners to submit to DNR staff a so-called "build out" schedule containing a construction schedule at ninety day time intervals with a time certain for completion of the project. This requirement, although infrequently used, has been uniformly imposed, when needed, upon all exempt projects, including that of WDC. The agency concedes that there is no specific statutory language authorizing the above requirements. However, it takes the position that these requirements are authorized and sanctioned by chapter 161 as a whole and by rules 16B-33.002(56) and 16B-004(1), which happen to be the rules challenged by WDC. Those rules read as follows: 16B-33.002 Definitions. (56) "Under construction" is the continuous physical activity of placing the foundation or continuation of construction above the foundation of any structure seaward of the established coastal construction or setback line. Under construction does not include application for or obtaining a building permit, a site plan approval or zoning approval from the appropriate local government agency having jurisdiction over the activity, purchasing construction materials, placing such construction materials on the site, clearing or grading the site in anticipation of construction, site surveying, continuation of site work beyond the limits of the foundation including landscape work or construction of nonhabitable major structures or rigid coastal or shore protection structures, or reactivating construction after substantially all construction activity has remained stopped for a period of six months or more. 16B-33.004 Exemptions from Permit Requirements. (1) Any structures under construction prior to the establishment of a coastal construction control line in a particular county are exempt from the provisions of Section 160.053, Florida Statutes, and this Chapter, except as noted in Subsection 161.053(12), Florida Statutes. Respondent acknowledges that there is nothing in rule 16B-33.004(1) that specifically authorizes it to impose the challenged requirements. However, it relies upon that part of the rule which reads "except as noted in Subsection 161.053(12), Florida Statutes" as implicitly authorizing this action. That statute removes the exempt status of a project if there are any subsequent modifications which "require, involve, ,or include any additions to, or repair or modification of the existing foundation of that structure." According to the Division director, it construes that language as authorizing it to make a determination as to whether the project owner has made any substantial changes in the nature of the project or if construction has been continuous. Respondent also relies upon rule 16B-33.002(56) which defines the term "under construction" as being "the continuous physical activity of placing the foundation or contination of construction above the foundation of any structure seaward of the established coastal construction control or setback line." The Division interprets this language to mean that construction must be continuous and without a cessation of activities of more than six months. This rule language is bottomed on subsection 161.053(9) which reads in pertinent part that "the provisions of this section do not apply to ... structures existing or under construction prior to the establishment of a coastal construction control line as provided herein; provided such structures may not be materially altered except as provided in subsection (5)." Finally, the agency relies upon subsection 161.053(1)(a) which sets forth the legislative intent behind the establishment of CCCLs. Among other things, the purpose of a CCCL is to protect, the beaches and dunes from imprudent construction which can "provide inadequate protection to upland structures." In the words ,of the Division director, DNR interprets this language to mean that it has the authority to "go back and look at projects once they are declared exempt, and to make sure that they remain exempt under the statute." The DNR documents which grant exemptions do not contain any reference to requirements that there be continuous construction on the project and that a build out schedule be submitted thereafter. Even so, DNR contends it is merely granting a "conditional" exemption conditioned on the project owner maintaining active and continuous construction. It posits further that, without such authority, its regulatory program would be rendered ineffective. However, the Division director conceded that, even without the imposition of these requirements, DNR still has authority to regulate all structures which are constructed seaward of the CCCL and to prohibit any material changes to an existing or partially completed structure. Petitioner intends to complete its project, but contends it cannot do so at the pace required in DNR's build out schedule. Also, WDC points out that it is unable to secure permanent financing for the project since lender's are uncertain if DNR will approve the build out schedule and allow construction to go forward or instead precipitously halt the construction. There have been no construction activities on the project since November 1988.
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
The Issue The parties stipulated that the denial of the proposed crossing was based solely upon the type of signal or warning devices the applicant had proposed to install. The issue presented is limited to the type of warning or signaling devices which should be installed at the proposed crossing.
Findings Of Fact The proposed crossing would be created by the extension of Thomas Road over the Seaboard Coast Line Railroad. Thomas Road runs northeast at approximately a 90-degree angle off the road known as Old 41 or Old Tamiami Trail, and its extension would cross the railroad approximately 600 feet from its intersection with Old 41. The Thomas Road/Old 41 intersection is located one-quarter mile southeast from the dead end of Old 41 in Lee County. Old 41 and Thomas Road are improved two-lane roads. Old 41 runs southeast for several miles and intersects US Highway 41. The extension of Thomas Road would terminate shortly after crossing the entrances to two proposed industrial parks. The proposed crossing will be the sole access to the 22-acre tract zoned for the heaviest industrial use permitted by Lee County. The tract has been sold in two sections of approximately equal size. The Seaboard Coast Line Railroad at the point of the proposed crossing consists of a mainline track and a spur, or storage track, which run parallel to Old 41 at the site of the proposed crossing. The mainline track runs from Tampa to Naples through the Fort Myers area in which the crossing will be located. The storage track runs 690 feet to the north of the proposed crossing and 1,400 feet to the south of the proposed crossing. The mainline track carries one train per day, and a speed limit of 35 miles per hour is imposed upon mainline traffic. The one train using the mainline track drops cars off onto and picks cars up from the storage track. These switching movements could entail multiple movements of rail traffic through the proposed crossing one time per day. Typically, cars would be dropped off onto the storage track as the train moved south on one day, and would be picked up as the train moved north on the following day. The number of cars dropped off onto the storage track would vary but would not exceed 60 cars, and there would generally be no more than 20 to 25 cars on the storage track at any one time. Each such car is 50 feet long. The mainline train is not run on Sundays. The projected vehicular traffic on Thomas Road is 791 vehicles per day over the crossing based on projected planning data developed by the Department of Transportation. Based on an assumed speed limit for Thomas Road of 35 miles per hour, a driver approaching the proposed crossing from Old 41 could see to the left of the crossing 85 feet and to the right of the crossing 92 feet from a point 200 feet from the crossing. Similarly, leaving the proposed industrial park, a driver could see 76 feet to the right and 46 feet to the left from a point 200 feet from the crossing. The 200-foot distance is derived from the distance it would take a driver to stop his vehicle while traveling at 35 miles per hour without going onto the track. There are existing railroad crossings in incorporated Fort Myers that carry ten to 20 times as much traffic as the proposed crossing which are not signalized. Although the Department of Transportation has emphasized signalization of existing railroad crossings since 1973, it has only completed the construction of or planning for the construction of signalized crossings on 750 existing crossings. The Department has established a numerical priority of signalizing existing crossings based upon the speed of vehicular traffic, the speed of railway traffic, the number of trains, the number of vehicles, the type of signalization or warning devices existing at the crossing, the number of lanes, minimum sighting distances, minimum clear quadrant sight distances, parallel roads, and school bus usage. Under the Department's system, the lower the number assigned to the crossing the higher its priority. Planning for signalization of existing railroad crossings is currently in the 800's. The Department's Safety Engineer identified the Townsend Street crossing in Wauchula as an existing railway crossing comparable to the proposed crossing. The Townsend Street crossing had a traffic count of 425 vehicles per day, two trains per day, 20-mile-per-hour train speed, traffic speed limit of 25 miles per hour, and minimum visibility in its worst quadrant of 57 feet. The Townsend Street crossing is not signalized and has a priority number of 3,250. Electrical signal and warning devices at railway crossings may be bypassed and turned off by railway personnel during switching operations. No evidence was introduced that the opening of the proposed crossing would endanger or damage the railroad operation. Opening of this crossing is necessary for the development of a major industrial property in Lee County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend approval of the proposed crossing with the required roadside flashing lights and bells on all roadway approaches to the crossing, with the following additional conditions: The speed limit on Thomas Road be set at 20 miles per hour; 1/ The Seaboard Coast Line Railroad Company be required to use a flagman at the crossing when switching cars onto the storage track over the crossing; The Seaboard Coast Line Railroad Company be required to store cars at the southern-most end of the storage track and not leave cars on the northern end of the storage track when a flagman is not present; 1/ and The obstructions to vision be removed from the area surrounding the crossing to permit a driver approaching the crossing at 25 miles per hour to see a train in sufficient time to stop before moving onto the track. 1/ DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1980.
