The Issue Whether the Florida Department of Transportation should issue a permit for the installation of a public at-grade railroad crossing in the vicinity of the Georgia, Southern and Florida Railroad track, 1,027 feet North of Milepost 214 on the alignment of Baya Avenue, East of Lake City, Florida.
Findings Of Fact Having heard the testimony of witnesses for the petitioner and the arguments of counsel and those witnesses appearing for the Department of Transportation on the issues and considering the evidence presented in this cause, it is found as follows: Petitioner, Florida Department of Transportation, is duly authorized to establish and maintain a primary system of highways within the boundaries of the State of Florida. The Petitioner has heretofore filed an application with the appropriate division of the Department of Transportation of the State of Florida pursuant to Chapter 330.21 Florida Statutes, for Permission to establish a graded railroad crossing for Baya Avenue (U.S. 90) within the city limits of Lake City, Florida on the state primary highway system proposed to intersect the Respondent Railroad's tracks approximately 1,027 feet North of Milepost 214 of the Georgia, Southern and Florida Railroad. The Respondent Railroad Company did not appear although the record shows that Notice of Hearing was properly given and that plans of the project and proposed signalization were duly sent by letter dated October 8, 1975. There was uncontroverted testimony by Mr. Terry Crews, Assistant District Utilities Engineer for the Petitioner that Mr. R. A. Kelso, Chief Engineer, Design and Construction, Southern Railway System had discussed a portion of the project by telephone with Mr. Crews and no objections were raised. No letters of objection were filed. The Petitioner is in the process of constructing a new four-lane vehicular thoroughfare. This construction is necessary in the rerouting of vehicular traffic through Lake City, Florida (U.S. 90). As a part of this construction it is necessary to cross the railroad and State Road 100 which lie adjacent to each other. It will be a four-lane divided highway with a painted median, with curbs and gutters in the vicinity of the crossing. At the time of construction, the railroad will consist of single-line trackage that carries two (2) trains per day at speeds of approximately 20 miles per hour. It is estimated that approximately 20,000 vehicles per day will use this facility by 1984. Studies conducted by Department of Transportation personnel reveal that the crossing should be signalized with cantilevered flashing lights, ringing bells and pavement markings in accordance with the Manual on Uniform Traffic Control Devices. This signalization should be interconnected with vehicle traffic signalization located at State Road 100 to control vehicular traffic at the highway crossing as well as the railroad crossing. The applicant agrees to install and maintain such signalization. The Hearing officer further finds: The proposed crossing is necessary and desirable; The signalization is adequate as planned, to protect the public; The Petitioner needs the crossing; The Respondent has not opposed the crossing; The Petitioner, Florida Department of Transportation, will Install and maintain the crossing.
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.
The Issue Whether Respondent Department of Transportation (DOT) may lawfully issue a permit authorizing Florida East Coast Railway (FEC) to close the railroad-highway grade crossing (the Crossing) located at Landon Avenue in Jacksonville, Florida.
Findings Of Fact On July 14, 2002, McLaughlin filed an application with DOT for closure of the Crossing located in Jacksonville. Subsequently, on November 13, 2004, DOT issued a Notice of Intent to Issue a Permit (Notice) to authorize the closure of the Crossing. On December 8, 2004, Jacksonville timely filed a petition challenging the proposed granting of the permit and these proceedings ensued. DOT’s closure program conducts studies on over 3700 public highway-rail grade crossings and creates an inventory to determine crossings that could use improvement for safety reasons and for determining crossing closure. Florida Administrative Code Rule 14-57.012 outlines the standards for opening and closing of railroad-highway grade crossings. Florida Administrative Code Rule 14-57.012(2) states that: [T]he Department will accept applications for the opening and closing of public railroad-highway grade crossing from the governmental entity that has jurisdiction over the public street or highway, any railroad operating trains through the crossing . . . The Department, on behalf of the State of Florida, will also open or close public railroad-highway grade crossings in accordance with the criteria set forth herein. Closure applications will also be accepted from individual citizens or groups, such as neighborhood associations. Opening or closure of public railroad- highway grade crossings shall be based upon Notices of Intent issued by the Department, administrative hearings conducted pursuant to Chapter 120, Florida Statutes, or upon a Stipulation of the Parties executed by any applicant, governmental entity, the appropriate railroad, and the Department . . . If the applicant chooses to pursue the opening or closure of the public railroad- highway crossing, the railroad and governmental entity having jurisdiction at the location are notified and provided a copy of the application. The governmental entity should provide a public forum for community involvement and contact affected individuals or groups to obtain input on impacts to the community . . . . The criteria for closing include safety, necessity for rail and vehicle traffic, alternative routes, effect on rail operations and expenses, excessive restriction to emergency type vehicles resulting from closure, design of the grade crossing and road approaches, and the presence of multiple tracks and their effect upon railroad and highway operations. The criteria for opening are the same except for the excessive restriction to emergency type vehicles. Through an initiative from the Federal Railway Administration (FRA), and the Federal Highway Administration (FHWA) to decrease the number of at-grade railroad crossings by 25 percent, DOT has made a conserted effort to close or consolidate, redundant, unsafe, and unnecessary crossings. Crossing closure presents substantial benefit, inclusive of a decrease in the funding and liability for the city and railroad, which in turn can reroute the funding to improve other transportation routes in the area, and most of all increase the safety to the traveling public because there are fewer intersections where cars and trains can collide. Janice Bordelon, DOT’s Rail Specialist oversees the openings and closings of all public highway-rail grade crossings throughout the State of Florida. Bordelon received McLaughlin’s application for closure on July 14, 2002. On August 14, 2002, she sent a copy of the application to Chief Ray Alfred, Jacksonville Fire Department; Mr. Lynn Westbrook, Jacksonville Public Works Department; Mr. Fred Kyle, Chief of Jacksonville Traffic Engineering Division; Mr. Charles A. Stone, Director of Engineering services for Florida East Coast Railway; and Principal Carole Benson, Landon Middle School. In addition, she visited the site on at least nine occasions where she met with the community, with Jacksonville’s officials, with the school and school board, and participated in meetings of Jacksonville’s safety, transportation and finance committees. Bordelon requested input from Jacksonville officials and gathered information from a variety of sources and eventually moved forward in working with Landon Avenue Residents and the professionals from Jacksonville to get to a Stipulation of Parties that would result in closure of the Crossing. In this process, Bordelon compiled a Closure Application Analysis applying all the Rule criteria to the Crossing. Once the analysis was complied, she provided it to Jacksonville officials, the district Jacksonville councilman, the applicant, and the School Board. The Stipulation of Parties was eventually withdrawn and Bordelon issued a Notice of Intent substantially adopting the closure analysis she had done earlier. The Notice of Intent concluded through findings of fact and conclusions of law that the application to close the crossing at Landon Avenue met the requirements of the Florida Administrative Code criteria. In summary, Bordelon found that the Crossing was located on a blind curve, was an elevated crossing with low traffic volume, close to alternatives routes, and was unsafe, unnecessary, and redundant. The closure of the Crossing effectuates DOT’s policy of promoting improved safety at railroad crossings by eliminating chances where a train and car can collide. Landon Avenue is located in the northeast part of the San Marco neighborhood across the St. Johns River from Jacksonville’s downtown in the core of the original city area. Jacksonville’s public works department maintains Landon Avenue. On both sides of the Crossing, Landon Avenue is a two-lane road with no sidewalks and would not meet Jacksonville’s construction standards if it were built today. Landon Avenue is a narrow (20 feet wide) city street that begins at Kings Avenue and runs west past the north-south streets of Faragut Place, Dewey Place and Perry Place, all of which have direct access to Atlantic Boulevard. Landon Avenue makes a southwesterly turn and then crosses two railroad tracks. On the western side of the railroad tracks Landon Avenue passes Arcadia Place, Minerva Avenue (a one-way south street), Thacker Avenue (a one-way north street) all with access to and from Atlantic Boulevard. Landon Avenue continues west and runs through Hendricks Avenue and ends at River Road. G. Rex Nicholson, qualified as an expert witness in forensic engineering, rail safety and design, as well as highway safety and design, agreed with DOT’s rail specialist Jan Bordelon and opined that the Crossing is unsafe, unnecessary and redundant because it is located on a residential street, has low traffic volume, is a non-necessity for travel, and is relatively close to alternatives routes. He indicated that the first step in the analysis of a crossing closure is whether a grade separation (bridge for either automobiles or trains) is feasible. In this instance, such an alternative is not available. Additionally, active safety measures of four- quadrant gates could not be installed at Landon Avenue due to the need for the installation of a non-mountable median and the lack of right-of-way. The expert testimony of Nicholson that grade separation is not feasible, and that only way to improve safety at the Crossing is to proceed with closure, is un- rebutted. Nicholson’s testimony further establishes that Landon Avenue is also a safety risk because street parking narrows the 20-foot wide Landon Avenue. After safety, the second applicable criterion is the need for traffic. Testimony and data indicates that the necessity for vehicle traffic on Landon Avenue is minimal. There is an Average Daily Traffic (ADT) of 1473 vehicles a day that use the crossing. Another study by DOT approximates the Average Daily Traffic to be 1841. These are both considered low traffic counts. It is rare for residents of Landon Avenue to have a destination on the immediate other side of the crossing. The main travel use for Landon Avenue is as a “cut through” by non- residents to more distant areas and to beat train traffic. The third applicable criterion to Landon Avenue is whether the closing constitutes an excessive restriction to the transportation of emergency type vehicles. Nicholson and Bordelon found that closing Landon Avenue would not create an excessive restriction to emergency type vehicles. Landon Avenue is a tree-lined, residential street only 20 feet wide with a blind turn as the street approaches the track from the East. It is not a main road. Residents park in the street, and Jacksonville has proposed traffic-calming devices on the street. Landon Avenue is not a road that is conducive to emergency type vehicles. For the same reasons the road is unsafe for speeding impatient motorists, it is unsafe for an emergency vehicle cut-through. As the majority of the Petitioner’s case against closure revolved around the restriction to emergency vehicles, that issue is further addressed below. The next applicable criterion for closure is the approach of the road to the Crossing. The design of the road approach of Landon Avenue creates a safety hazard. As Landon Avenue approaches the track heading west, from Kings Road, the road turns to the southwest immediately before the Crossing to create a blind corner where vehicles are unable to see an approaching train. As Landon Avenue approaches the crossing heading east, from Hendricks Avenue, the view of the tracks to the north is obstructed by a building and plants. These obstructions make it very difficult for a speeding motorist to see an approaching train. The Crossing at Landon Avenue meets DOT and FRA initiatives for closure. It is not an arterial road, is used by high risk motorists, and is a safety risk for train-car collisions. Closure of the Crossing will effectuate the policy of improved safety at railroad crossings by eliminating the chance for train and car collisions. The Crossing is a public at-grade railroad crossing, designated by DOT as Crossing No. 271815X. It consists of two mainline tracks, a northbound mainline and southbound mainline that transport approximately 26 trains a day through the Crossing. In addition to FEC, Norfolk Southern Railway and CSX, also both class one railroads, operate trains over the Crossing. Present signalization at the Crossing consists of cantilevered flashing lights and gates; and reflective cross bucks. Safety is the first criterion in closure analysis. The Crossing is located at Railroad Mile Post 1.45, just south of a banked curve in the double tracks that makes it a “blind turn” for the conductor and engineer of a southbound train. Jerry Hall, Sr., FEC’s director of claims, narrated a video in evidence in this proceeding that further corroborates the train operators’ vantage point and demonstrates how the combination of double tracks and lack of site distance in the super-elevated banked curve create a safety hazard at the Crossing. One accident occurred at the Crossing when a train collided with a car, even though the standard cross bucks, lights and bells were operating. The train’s headlight was working and on, the train’s bell was working and the proper whistle signals were blown at the time of the accident; however, the train could not stop in time. The curve in the tracks delays the time a train operator has to avoid a collision with a car at the Crossing. Over 50 percent of train-car collisions result from cars avoiding passive devices and crossing tracks regardless. Accidents at railroad crossings often occur because the road hump over the track serves as a launching ramp for thrill seekers traveling through such intersections with trains at a high speed. This specifically occurs because a speeding automobile’s front wheels lift off the ground and the vehicle continues in the direction it was last going. When motorists sue over accidents in these situations, it is the municipalities or governmental entities with jurisdiction over the road that are usually held responsible. The Crossing is a perfect candidate for this type of accident. Further, the Crossing is a present safety concern for residents of Landon Avenue because it is used by cars and motorcycles as a ramp to “get air” in conjunction with such motorists speeding through the neighborhood to avoid traffic from other Jacksonville streets caused frequently by trains at other nearby intersections. In this regard, Residents saw a filming crew documenting motorcycles jumping the Crossing. They also have witnessed some individuals turn their bikes and vehicles around and repeatedly jump the Crossing. In addition to the accident noted above, Landon Avenue residents testified that there have been several near-miss incidents at the Crossing, including an unreported accident in which a speeding car hit a Landon Avenue girl. The next criterion in the closure analysis is whether there are alternative routes available. The Crossing is located in a residential area near six crossings within one mile of track. The next crossing to the north is located at 1/4 of a mile at four-lane Hendricks Avenue and the next crossing to the south is 1/5th of a mile or 900 feet at four-lane Atlantic Boulevard. These main artery roads, along with Kings Road, allow for easy access to both sides of the Crossing. Closure of the Crossing would disperse traffic onto three different roads: Atlantic Boulevard, Hendricks Avenue and Kings Road. Regardless of the index ratings for these roads, DOT’s goal of eliminating the interaction of vehicular traffic with rail traffic would be accomplished. Hendricks Avenue and Atlantic Boulevard are both four-lane main artery roads. These are safer roads, with non-elevated crossings, that have good sight distance for both train operators and motorists. Motorists do not go around the gates at a four-lane road as often as they do on a two-lane residential street. It would enhance safety to have traffic crossing the railroad tracks at Hendricks Avenue and Atlantic Boulevard rather than at Landon. Additionally, traffic safety would be enhanced by diversion of traffic to Hendricks Avenue and Atlantic Boulevard, thus eliminating one place where a vehicle and a train can try to occupy the same space at the same time and lessening the probability of a collision; logic shared, incidentally, with the United States Federal Government program named “Gradec,” that supports traffic safety enhancement through closure of rail crossings. The next criterion in the closure analysis examines how the closure would affect rail operations and expenses. The closure of the Crossing would decrease operating expenses for FEC and Jacksonville. The cost of maintaining the signal equipment and proper maintenance of the crossing would be avoided. The substantial savings realized by Jacksonville would include savings of $70,000.00 due to rehabilitation of the Crossing that is necessary every six or seven years. Further, FEC and Jacksonville liability and the associated litigation costs exposure would diminish. A criterion in the closure analysis examines the design of the crossing and the road approach. As previously noted, the design of the Crossing and road approach creates an unsafe condition because of the super-elevated nature of the tracks, and the Crossing. There are gouge marks in the pavement at the point of street and rail intersection at the Crossing where the undercarriages of vehicles have scraped against the pavement due to the elevation from the grade of Landon Avenue to the elevated area of the track location. To eliminate the elevated nature of the Crossing, the road approach would have to be raised to the level of the Crossing. Since the rail tracks are banked at a “super-elevated curve” this would be a difficult task. The next criterion examines the presence of multiple tracks and its effect on operations. The presence of multiple tracks and their effect on the railroad and highway operations increase the safety risk at the Crossing. Testimony of Landon Avenue residents and the FEC Claims Director establish that motorists go around the gates at the Crossing. Motorists expect that when one train passes the gates will immediately lift up and allow their vehicles to cross. When two tracks are involved, impatient motorists often misunderstand that there can be two trains coming from different directions at almost the same time. This is especially true where there is a blind corner and two quadrant gates. An impatient driver, unaware of the double track, may easily go around the gate and be caught off guard by the second train. Double tracks also increase the risk of accidents because the train operator of a several ton train doing 25 miles per hour on the southbound mainline has only 457 to 522 feet to avoid a collision with an impatient driver at the Crossing. This is not enough time to stop a locomotive engine, or a train. Closing the Crossing would save the railroad and Jacksonville operating expenses of maintaining the railroad while enhancing safety and achieving DOT’s goal of reducing the probability of a train-automobile collision. In 2000, McLaughlin inquired with DOT about closing the Crossing. He then consulted with Jacksonville. Jacksonville set up a formal meeting with the Lorin Mock, Jacksonville Fire Department; Jim Suber, Jacksonville Police Department; and the Jacksonville councilman who was the district representative at that time. At that meeting, the Jacksonville professional representatives acknowledged that there were no major problems with the closure of the crossing. The councilman at the time did not follow up on sending out letters to request community input. In July 2002, after a period of inactivity regarding the Crossing’s closure and after discovering DOT had authority to close the Crossing, McLaughlin filed an application with DOT for closure. City officials had no problem with closure of the Crossing, and the School Board Chairperson had no difficulty with such closure. A Stipulation of Parties for the closure of the Crossing was drafted and introduced to the City Council by Councilman Art Shad. The proposal was discussed at length before the City Council’s Transportation Committee, which Bordelon attended on behalf of DOT. The legislation to close the Crossing was then submitted to the City Council, but before a vote could be obtained the legislation was withdrawn and Jacksonville decided to oppose the closure. As established by testimony of the Director of Public Works, the withdrawal of the Stipulation of Parties was based on politics, not on any factual findings or meaningful opposition from any Jacksonville professional employee. Considering that a school bus is not an “emergency response type vehicle” the closure analysis regarding the bus goes to the criteria of safety, alternative routes, and effect on operations. There are 14 buses in the morning that come to Landon Middle School, and 16 buses in the afternoon that come to the school. These buses could use Arcadia Place or Hendricks Avenue or some other combination to cross the tracks and exit and enter the school. Additionally, buses stack up on Landon Avenue while waiting for the children which could possibly result in a train-school bus collision which, as established by testimony of David Solomon, an employee of the Duval County School, would be “the worst nightmare an organization can have.” The Duval County School Board had previously addressed the closure of the Crossing and indicated approval prior to Jacksonville’s reversal and decision to oppose that action. Kris Barnes, the Duval County School Board Chair, wrote an October 27, 2003, letter to Ms. Bordelon stating on behalf of the School Board that, after having spoken with the Landon Middle School principal and the Duval County School Board Safety Department, there would be no problem with the closing of the Crossing. There are easily accessible alternative routes that would not disrupt the school or school bus operations and would result in a significant enhancement in safety. Nicholson’s un-rebutted expert testimony concluded that if Jacksonville were applying to install a new crossing at Landon Avenue it would not meet the criteria for an opening, which contains six of the seven criteria for closure. The seventh criterion is whether the closure would cause an excessive restriction to emergency type vehicles. Jacksonville presented testimony, but no data, regarding the fire and rescue vehicles using the crossing. DOT applies the word “excessive restriction” in its rule to mean an excessive restriction for travel. Bordelon’s analysis concluded that the ambulances and other vehicles could easily use the alternative non elevated crossings at Hendricks and Atlantic without being excessively restricted from traveling to an emergency. In processing McLaughlin’s application for closure, Bordelon conducted an independent review of the distance and first response times by fire and emergency vehicles to the Crossing. Bordelon found that fire station 12 and fire station 13 were very close to the Crossing and could easily be reached within the time limit goal of four to six minutes. Since the Landon Avenue/ San Marco area is close to downtown Jacksonville, there is overlapping fire and rescue coverage from fire stations 12 and 13. Using the Atlantic Boulevard railroad crossing, fire station 13 is approximately 0.6 miles from the 1700 block of Landon Avenue. Using the Atlantic Boulevard railroad crossing, fire station 12 is approximately 1.5 miles from the 1500 block of Landon Avenue. The alternative routes that a fire/rescue response from station 13 would have to take to avoid the Crossing are minimal, or approximately an additional fourteenth (.14) of a mile. The alternative routes that a fire/rescue response from station 12 would have to take to avoid the Crossing are minimal, or approximately an additional tenth (.10) of a mile. Jacksonville’s Fire Chief Lorin Mock testified that the there “would be no issue at all in the crossing closure” if it were involved with fire responses using the Atlantic Avenue crossing instead of the Crossing. The average response time from either of these stations to the Crossing is 3.9 minutes. The goal average response time by the Jacksonville Fire Department is six minutes. The response time is calculated from the time a call is made to the time the emergency vehicle arrives on the scene and includes the 911 call and response. Chief Mock and the Jacksonville Fire Department oppose any closure of a railroad crossing, regardless of the safety need for the closure. In the words of Chief Mock, rail crossings are a “string of pearls” that the fire department uses to cross the railroad tracks and the more opportunities to cross the better. He acknowledged that he was looking at the definition from an emergency response standpoint. Per Nicholson’s un-rebutted expert testimony, there is no appreciable difference in response times and distances and no excessive restriction to the transportation of emergency vehicles. Chief Mock’s acknowledgement that the residents of Landon Avenue have “pretty good” overlapping fire coverage because the spacing of fire stations are closer in the core city area, and fire hydrants are available on both sides of the track serves to corroborate this determination. The closure would not result in excessive restriction to the transportation of emergency vehicles.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered approving the requested permit for closure of Department of Transportation Crossing No. 271815X in Jacksonville, Florida. DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2005. 1/ John F. Kennedy
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.
The Issue Whether the application of the Florida East Coast Railway Company (FEC) to close the subject railway crossing should be dismissed for lack of regulatory jurisdiction.
Findings Of Fact Petitioner owns and operates a propane gas distribution facility adjacent and parallel to the FEC railroad track within the Town of Lantana. The railroad track is between Petitioner's facility and U.S. Highway 1. To reach its property from U.S. Highway 1, Petitioner's employees must utilize a railroad crossing commonly known as Gator Culvert. The Gator Culvert is an at-grade railroad crossing. On October 13, 1948, the Town of Lantana acquired a right-of-way for road purposes at the Gator Culvert from Everett Wurtz, Petitioner's predecessor in title. On December 13, 1948, FEC and the Town of Lantana entered into a one-year renewable license to use the crossing for public road crossing purposes contingent upon the Town of Lantana assuming the cost of maintaining the crossing. On June 26, 1979, the Town of Lantana quit-claimed its interest in the right-of-way to Gator Culvert.2 On March 29, 1996, Petitioner filed suit against FEC seeking declaratory and injunctive relief regarding its rights to use the Gator Culvert crossing. This litigation is pending in Circuit Court in Palm Beach County, Florida. On June 28, 1996, FEC filed the subject application with Respondent for authorization to close the Gator Culvert crossing. On October 2, 1996, Petitioner amended the complaint that underpins the Circuit Court litigation to join Respondent and the Town of Lantana as defendants. By Count One of the Amended Complaint, Petitioner (referred to as Plaintiff in the Circuit Court pleadings) requests the Court to: . . . grant a declaratory judgment ruling that Plaintiff has a way of necessity purusant to F.S. Section 704.01(1) and that Defendants FEC, FDOT, and Town of Lantana may not close the crossing and thereby prevent Plaintiff's use of its way of necessity. Plaintiff further requests a trial by jury pursuant to F.S. Section 86.071. By Count Two of the Amended Complaint, Petitioner requests the Court to: . . . grant a declaratory judgment ruling that Plaintiff has a prescriptive easement and that Defendants FEC and the Town of Lantana may not close the crossing and thereby prevent Plaintiff's use of said easement. Plaintiff further requests a trial by jury pursuant to F.S. Sectioln 86.071. By Count Three of the Amended Complaint, Petitioner requests the Court to: . . . enter a temporary and permanent injunction restraining and enjoining Defendant, FDOT from granting FEC's application to close the crossing; to restrain and enjoin Defendant FEC from ceasing to maintain and from closing the railroad crossing which provides the only access to Plaintiff's property; and to restrain and enjoin the Town of Lantana form executing the Stipulation for Approval of Closure3 or participating in any way with the attempted closure of said crossing. Count Four of the Amended Complaint pertained only to the Town of Lantana and did not involve Respondent. On August 14, 1998, Respondent published its Notice of Intent to Dismiss Application to close the subject railroad crossing in the Florida Administrative Weekly. This notice set forth Respondent's rationale for dismissing the application to close the Gator Culvert crossing that FEC had filed June 28, 1996, in pertinent part, as follows: . . . The history of the crossroad, and its current condition indicate that it is not a public road. In particular, on the 26th day of June 1979, the Town of Lantana quit- claimed its interest to the right of way for public road purposes to Gator Culvert. While the prior status of the road as a public road is in doubt, this transaction effectively abandoned the right of way as a potential public roadway. Because the crossing is not a public railroad-highway grade crossing, the location is not subject to the Department's jurisdiction pursuant to Section 335.141, Florida Statutes. . . . On September 4, 1998, Petitioner timely filed its Petition for Formal Administrative Hearing with Respondent, the pleading that underpins this proceeding. On September 10, 1997, the Respondent issued a rails inventory that identified the Gator Culvert crossing as a private crossing. Scott Allbritton, Respondent's Rail Programs Engineer, reviewed and assessed the documents in the public record in processing FEC's application that were necessary and appropriate to determine whether the subject crossing was public or private, thereby determining whether Respondent lacked jurisdiction to regulate the subject crossing. His investigation revealed that the record title to the subject crossing was private. Based on Mr. Allbritton's investigation, Respondent determined that it lacked jurisdiction to regulate the subject crossing since it was not a public crossing. Respondent did not act in an arbitrary or capricious manner in making that determination. Respondent does not attempt to adjudicate real property disputes by its administration of the statutorily mandated railroad/vehicular traffic crossing program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that dismisses this proceeding. DONE AND ENTERED this 17th day of February, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1999.
Findings Of Fact Polk County proposes to relocate Hunt Brothers Road where it crosses the Seaboard Coastline Railroad near Highland Park some 350 feet to the north and to remove the existing roadway approach to the crossing. Hunt Brothers Road is a two lane highway 24 feet wide. The existing road has no signalling devices or warning lights installed other than a railroad crossing sign. Polk County proposes to put back-to-back flashing lights on each side of the road at the relocated crossing. However, the county has no objection to installing whatever signal devices are required at this crossing. The approach to the proposed crossing provides greater safety than exists at the old crossing. The new road exits a curve to the right 250 feet from the tracks. No other obstruction exists at this crossing, however, a second parallel track exists on which cars could be parked within 200 feet of the road. From the evidence adduced this appears to be a relatively short siding and not a track on which trains move. One northbound and one southbound train moves over this track daily. No evidence was presented that stanchions for flashing lights could not be located within 12 feet of the edge of the roadway. There is no record of any accident at the existing crossing and the safety factor of the crossing was not computed and presented at the hearing. The additional initial cost of installing cantilevered flashing lights and gates over the cost of installing roadside flashing lights is some $50,000. No cost benefit ratio or study showing the benefits to be obtained with use of the more expensive system was presented. The principal reason for the District Safety Engineer's recommendation for cantilevered flashing lights and gates was that as the driver of a car negotiated the curve approaching the track his eyes would of necessity be focused on the center line of the road and would better see lights located over the center of the road. He acknowledged however that if lights were on both sides of the road the field of vision of a driver looking straight ahead as he exited the curve would include a light on the left-hand side of the road before one in the middle of the road.
Findings Of Fact The railroad crossing which is the subject of this proceeding is crossing number 272642-N, in the City of Miami, Florida. Its location at N.W. 13th Street is approximately 430 feet south of an existing crossing located at N.W. 14th Street, and roughly 850 feet north of another crossing located at N.W. 11th Street. The Railway's rationale for seeking to close the N.W. 13th Street crossing is that these other two nearby crossings offer practical alternate routes to the N.W. 13th Street crossing, and can provide adequate access to the area for the public and emergency services. The City's opposition is based on its contention that closure of the N.W. 13th Street crossing would adversely affect emergency access to the area, and would restrict access to the adjacent area where the City has at least two redevelopment plans pending which contemplate the building of approximately 10,000 new residential housing units. The Department of Transportation supports the closing of the subject crossing, contending that the existing crossings at N.W. 14th Street and N.W. 11th Street can carry the traffic that would be diverted from N.W. 13th Street, and that closing the N.W. 13th Street crossing would eliminate a hazard to the public at that point. The section of the Florida East Coast Railway involved in this proceeding runs from N.E. 79th Street to Biscayne Boulevard, a distance of approximately five miles. There are approximately 30 crossings now in existence over this section of the railroad's track. The principal justification for the closure of the N.W. 13th Street crossing is its proximity to the two crossings located at N.W. 11th Street and at N.W. 14th Street, and the resulting improvement in safety for vehicular traffic and railroad equipment. There is an overpass with large pillars directly above the subject crossing, and a curve in the railroad track at this location which tend to restrict the view of train crews as the crossing is approached. Closure will also eliminate upkeep and maintenance expenses caused by frequent vandalism at the N.W. 13th Street crossing location, and eliminate one sounding of the train whistle between N.W. 14th Street and N.W. 11th Street. The present signal device at the N.W. 13th Street crossing is between 20 and 25 years old, and should require replacement within the next two years at an estimated cost of $41,570, unless the application is granted and the crossing closed. In addition, this signal device has been the subject of vandalism on four different occasions during the months of August, September and October, 1981, which necessitated repairs at the crossing site. The frequency of vandalism at the N.W. 13th Street location exceeds that at most of the other crossings in the Miami area. Northwest 13th Street is not a through street, but is a localized road which is blocked by the embankment for I-95. It is one-way westbound from the general vicinity of Biscayne Boulevard and 2nd Avenue to just beyond the subject crossing where it becomes two-way past the I-95 embankment. Both N.W. 14th Street and N.W. 11th Street are arterial roads which pass beneath I-95 and are not blocked by the embankment. They are the alternate roads in the area with adequate capacity to carry the traffic diverted from N.W. 13th Street if this crossing were closed. The movement of fire, police and other emergency vehicles would not be impeded by closing of the N.W. 13th Street crossing, since the crossings at N.W. 14th Street and N.W. 11th Street are readily available and offer better access to the area than N.W. 13th Street. Police or fire vehicles moving eastward over the N.W. 13th Street crossing must travel over a circuitous route because N.W. 13th Street is not a two-way street east of the crossing. In addition, closure of the subject crossing would remove an existing conflict point (a point where the path of any vehicle is interrupted by another vehicle), which is beneficial from a safety standpoint. Finally, any population growth in the area will have adequate transportation over N.W. 14th Street and N.W. 11th Street and will not require the use of the N.W. 13th Street crossing. Consequently, there will not be any significant impact upon traffic over the crossings at N.W. 14th Street and N.W. 11th Street by closure of the N.W. 13th Street crossing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Florida East Coast Railway Company to close the at-grade railroad crossing at N.W. 13th Street in Miami, Florida, be granted. THIS RECOMMENDED ORDER entered on this the 17th day of March, 1982, in Tallahassee, Florida. COPIES FURNISHED: Charles B. Evans, Esquire One Malaga Street St. Augustine, Florida 32084 Terry V. Percy, Esquire 174 East Flagler Street Miami, Florida 33131 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301 WILLIAM B. THOMAS 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 17th day of March, 1982.
The Issue The issue is whether Respondent CSX Transportation, Inc.'s railroad crossing located on Old Kings Road in Jacksonville, Florida, meets the criteria for closure as set forth in Rule 14-46.003(2)(b), Florida Administrative Code.
Findings Of Fact History and Current Status of Crossing Old Kings Road has been in existence at least since 1837. The road was located in its approximate location in COJ's city limits prior to the arrival of the railroad. COJ owns and maintains Old Kings Road. The subject of this proceeding is a public at-grade railroad crossing ("the Crossing"), designated by FDOT as Crossing No. 621191C. The Crossing is located in the northwestern part of COJ in Duval County, Florida. The Crossing intersects with Old Kings Road, which has always been an important means of ingress and egress to downtown COJ for residents located west of the Crossing. A neighborhood association, the Grand Park Civic Club, requested that COJ build an overpass over the Crossing due to train blockages in the 1930's. The Crossing originally consisted of five tracks. Later it was increased to seven tracks. In 1995, CSXT requested COJ to consider closing the Crossing. COJ refused this request. In April 1997, CSXT filed an application with FDOT to close the Crossing. Neither CSXT nor FDOT gave COJ immediate notice that FDOT was considering the application. However, as early as January 15, 1998, CSXT was aware that COJ opposed the closing. In July 1998, CSXT closed the Crossing for repairs with COJ's acquiescence. COJ understood originally that the repairs would last from two to four weeks. Some months later, COJ learned that the Crossing might not reopen until December 1998. COJ learned about CSXT's application to close the Crossing sometime during the fall of 1998. At that time, FDOT verbally conveyed the information about the pending application for closure of the Crossing to COJ. In October 1998, COJ wrote a letter requesting FDOT's assistance in opening the Crossing because FDOT had not issued a permit to close it. Then in February 1999, CSXT advised FDOT by letter that CSXT and COJ were engaged in negotiations regarding closure of the Crossing. In August 1999, FDOT suspended consideration of the application pending the on-going negotiations between COJ and CSXT. In a February 2000 letter, COJ again requested FDOT to reopen the Crossing until such time as formal hearings were held and/or the parties could enter into a stipulation. FDOT's consideration of the application remained suspended at that time. In October 2000, CSXT requested that FDOT reopen the file on its application. By letter November 1, 2000, FDOT advised CSXT that the file would be reopened. On January 31, 2001, FDOT issued a Notice of Intent to Issue a Permit to close the Crossing. The Crossing remained closed at the time of the formal hearing. The Crossing CSXT conducts freight rail operations on railroad tracks that run in a northwest - southeast direction across Old Kings Road in Jacksonville, Florida. The Crossing is located within the yard limits of CSXT’s Moncrief Yard, a large classification yard for CSXT trains. CSXT removed the two westernmost tracks and the roadbed at the Crossing after closing it in July 1998. Currently, the Crossing has a total of five parallel railroad tracks that cross the road at a skewed angle of approximately 20 degrees. The distance across the existing tracks is 276 feet. On both sides of the Crossing, Old Kings Road is a two-lane highway with no sidewalks. The Crossing has more railroad tracks than any other railroad crossing in Jacksonville, Florida. The Crossing has automatic crossing gates and flashing signal lights. CSXT disconnected these traffic control devices when CSXT closed the Crossing in July 1998. FDOT has no plans to upgrade the traffic control devices regardless of whether the Crossing is reopened or remains closed. The Crossing is located in an urban area. The next crossing point over the CSXT rail lines is located at the Edgewood Avenue Bridge, 1.35 miles to the north as measured along the rails. Going south, again measuring along the rails, the next CSXT crossing is 1.7 miles away at McQuade Street. The McQuade Street crossing is located at the southern end of Moncrief Yard. The easternmost track at the Crossing is the CSXT mainline track. The mainline track is the primary track for Amtrak passenger trains and CSXT freight trains that do not require switching or maintenance in the Moncrief Yard. The speed limit for trains using the mainline track is 40 miles per hour. The remaining four tracks at the Crossing are yard tracks, which CSXT uses for the assembly of trains on the north end of the Moncrief Yard, as well as inbound and outbound freight train arrivals and departures. The four yard tracks have a speed limit of 10 miles per hour. Train Movements at Old Kings Road Crossing There are approximately 100 train movements, including switching movements across the Crossing on a daily basis. Switching movements in the Moncrief Yard involve the assembly and disassembly of trains through the movement of freight cars into designated yard tracks. Switching movements take place in the Moncrief Yard 24 hours per day, seven days per week, except for Christmas, Thanksgiving and select holidays. Switching movements are carried out primarily at the north end of Moncrief Yard near the Crossing because the track layout at that end is best suited for such operations. Other parts of the yard do not lend themselves to efficient switching operations. In order to be switched, a cut of railroad cars must be moved back and forth repeatedly, with pauses between movements. Once switching is complete, federal law requires the train's brakes to be checked. The train then must wait for the track to be clear of other train traffic before departing. Often a cut of railroad cars will pull close enough to the Crossing to activate the warning lights and gates without actually blocking the roadway. When that happens, a motorist will see an open roadway and a stopped train that is the apparent cause of the activation of the warning devices. This circumstance creates a uniquely hazardous situation for motorists and pedestrians. CSXT operates between 11 and 22 intermodal trains daily through Moncrief Yard, which is an unusually extensive operation. Approximately 40 locomotives per day are serviced in the yard. Amtrak operates daily approximately nine scheduled movements over the mainline track throughout the day and night. Due to its proximity to the Moncrief Yard, Old Kings Road is regularly blocked by trains engaged in switching movements that travel back and forth across the Crossing, in addition to other train traffic. There is no practical method of operating the Moncrief Yard without blocking Old Kings Road for extended periods of time. This is the only CSXT railroad crossing in the State of Florida that is regularly blocked by switching movements for extended periods of time. On November 29 and 30, 2000, CSXT studied the amount of time that the Crossing was blocked by train movements. The study demonstrated that train traffic blocked the Crossing for a total of 12 hours and six minutes during a 24-hour period of time. Such blockage has consistently existed at the Crossing for 30 years or more. On July 31 through August 2, 2001, COJ studied the amount of time that the Crossing was blocked by train movements. The results of the COJ study were consistent with the CSXT study of train blockages at the Crossing. The surveys performed by CSXT and COJ to determine the time that trains blocked the Crossing measured only the amount of time that one or more trains actually blocked Old Kings Road. If the Crossing were open to traffic, Old Kings Road would be blocked for even longer periods of time because the flashing lights and gates would activate before the trains arrived at the Crossing. Motor Vehicle Traffic at the Crossing From 1991 to 1997, the average daily traffic volume in the vicinity of the Old Kings Road crossing was less than 2,000 vehicles per day. The motor vehicle traffic volume at Old Kings Road is considered a low traffic count by FDOT standards. The traffic volume at the Crossing is far too low to justify expending the funds and other resources necessary to construct an overpass. Safety Effects upon Rail and Vehicle Traffic Some of the facts necessary to determine safety effects upon rail and vehicle traffic are discussed in paragraph 20. Due to the height and length of slow-moving or stopped trains involved in switching operations on some or all of the four railroad tracks to the west of the CSXT main line, motorists approaching the crossing from the west cannot see fast-moving trains, including Amtrak passenger trains, approaching the Crossing on the CSXT mainline. Likewise, the 20-degree skew of the intersection makes it difficult for westbound motorists on the east side of the Crossing to look to their left to determine whether a northbound train is approaching. Motorists frustrated by the long wait times at the Crossing regularly drive around the crossing gates. They take this risk often under the mistaken belief that stopped or slow moving trains have activated the signal lights and gates. At times vehicles fall off the roadway as drivers attempt to go around trains partially blocking the roadway. Drivers also become distracted by the beveled and rough roadway surface between the numerous tracts. These circumstances, together with the regular and extended blockages, give motorists a high probability of interacting with train traffic while simultaneously almost inviting them to run the gates. COJ’s neighborhood witnesses testified that they either personally drove around the lowered crossing gates at the Crossing or observed other motorists driving around the gates in order to avoid extended train delays. COJ witnesses, Rebecca Jenkins and Talmadge Ford, have observed two to four vehicles driving around the crossing gates at the same time. Motor vehicles have also been stranded on the railroad tracks on several occasions when motorists drove around the lowered gates and left the paved road area at the Crossing. The safety hazards present are unique to the Crossing based upon the presence of a substantial number of train- switching movements over the crossing, multiple tracks with trains of varying speeds, motorist frustration over train delays, obstructions to visibility and a general misapprehension by the motoring public of the nature of yard switching movements. Unlike the Crossing, the majority of railroad crossings do not contain multiple railroad tracks within yard limits with trains performing different operations at different rates of speed. Due to the skewed angle of the Crossing, the presence of five railroad tracks, and the location of the crossing gates, the distance that a motor vehicle or pedestrian must travel to traverse the Crossing is 397 feet. Even if the signal lights were relocated closer to the railroad tracks, the distance across Old Kings Road would be approximately 276 feet, the actual distance across the tracks. The substantial length and the skewed angle of the Crossing reduce visibility for motorists and increase the probability of a crossing accident. The use of commercial trucks over the Crossing on a regular basis would substantially increase the danger of an accident due to the distance that a truck must travel over the Crossing under normal operating conditions. Because of their length, large commercial trucks take longer to clear a crossing than a car traveling at the same speed. There were at least 12 railroad-crossing accidents at the Crossing from 1975 until 1998. Most of these accidents occurred on account of violation of law by drivers or pedestrians. One of these, a motor vehicle accident, resulted in a fatality. Six of the eight accidents involving a motorist resulted in no personal injury. Even so, the Crossing had the highest number of grade-crossing accidents in Jacksonville, Florida, from 1975 until 1998. In January 2001, COJ commissioned a Jacksonville engineering firm, Waitz and Moye, to perform a study of 10 railroad crossings in the northwest quadrant of Jacksonville, Florida. This study included the Crossing, which had the highest number of accidents of the 10 railroad crossings. There were twice as many accidents at the Crossing than the crossing with the second highest number of accidents, despite the fact that the Crossing had one of the lowest traffic volumes. In addition to accidents, there have been numerous near-miss incidents at the Crossing, where motorists driving around the crossing gates narrowly avoided injuries. Due to obstructions to visibility, an Amtrak train traveling 40 miles per hour on the CSXT main line does not have sufficient time to avoid a collision at the Crossing. Mr. Darryl Murray, the Service Manager for Amtrak, testified that he regularly operated trains over the Crossing from 1974 until 1986 with the Seaboard Coastline Railroad, and from 1986 until 1991 with Amtrak. Since 1991, Mr. Murray has directly supervised Amtrak train crews that operate over the Crossing. Mr. Murray testified there are other crossings that are just as busy as the Crossing. He admitted that the Crossing would be safer in the future because the two western-most tracks have been removed. However, according to Mr. Murray, the Crossing is one of the most dangerous railroad crossings that he has encountered during his railroad career. According to Mr. Murray, a crossing accident involving an Amtrak passenger train traveling 40 miles per hour at Old Kings Road could result in serious personal injury or death to the motor vehicle occupants and train crew; derailment of the train; and injuries to Amtrak passengers due to the emergency braking application of the train. In the early to mid 1990's, Mr. Murray personally investigated an accident involving an Amtrak train and a passenger vehicle at the Crossing, which resulted in serious personal injuries to the motorist. Mr. Kevin Carter, a manager for Resource Logistics International ("RLI"), testified that if the Crossing were re-opened, RLI trucks carrying 80,000 pounds of aluminum would use it during transport. Mr. Carter has seen one or two of his truck drivers go around the gates at the Crossing and was aware of other trucks going around the lowered gates. Mr. Carter has disciplined at least one of his drivers for driving around railroad crossing gates in the down position. CSXT also presented the testimony of experienced railroad employees who have worked in the Moncrief Yard at the Crossing on a daily basis for many years. CSXT employees testified that, due to its location in the middle of an active switching yard, the Crossing is the most dangerous railroad crossing in Jacksonville, Florida. In addition to motor vehicle accidents at the Crossing, the evidence established a serious safety hazard involving pedestrians. Prior to its closing in 1998, pedestrians regularly climbed between freight cars stopped at the Crossing in order to avoid extended train blockages. Additionally, pedestrians regularly placed their bicycles over or under the coupling mechanism that connects railroad cars while attempting to climb between railroad cars. Several of the accidents at the Crossing involved serious injuries to pedestrians who were trapped between freight cars when the train suddenly moved. The number of pedestrians at the Crossing has decreased since its closure. There have been no accidents at the Old Kings Road crossing since its closure in 1998. If the Crossing were closed, protective measures could be taken to more effectively discourage trespasser access, including cul-de-sacs, road barriers, fencing and signage. COJ has determined there is sufficient land to build cul-de-sacs at the Crossing. On the other hand, it is impossible to completely block pedestrians from using the Crossing if they are intent on doing so. In an effort to assess safety hazards at the Crossing, COJ presented evidence about the FDOT Safety Index. FDOT uses the safety index to determine the prioritization of upgrades for crossings that do not have automatic gates and signal lights. FDOT does not utilize the safety index for its closure analysis. The FDOT safety index for prioritizing crossing-warning device upgrades does not determine the dangerousness of a railroad crossing. The federal government requires FDOT to create the safety index annually. From among the top 800 crossings, FDOT determines which crossings receive funding for improvement of warning devices. The maximum protection that FDOT currently permits is flashing lights and automatic gates. Crossings that rank in the top 800 on the safety index and that already have lights and gates do not receive funding because no further improvement is available. In effect, the safety index report serves only to identify problematic crossings. With annual funding of only approximately $5 million, FDOT improves about 30 crossings per year. Although the Crossing had automatic gates and flashing signal lights before they were disconnected in July 1998, the current FDOT Safety Index indicates that the Crossing has a safety index rank of 561 out of 4500 railroad crossings in the state. This does not mean that FDOT considers 560 other crossings to have greater priority for upgrades than the Crossing. Because the safety index report continues to assign a high rank to the Crossing, which already has lights and gates, the only way FDOT can make the Crossing safer is to close it. Even so, using the FDOT safety index ranking and correct factual assumptions, the safety index number for the Crossing is approximately 50, which is less than the marginal safety level index number of 60 set by FDOT. FDOT guidelines indicate that a crossing should be considered for improvements at a safety level index of 60. FDOT uses a separate program to consider overpass construction for crossings. As stated above, the low traffic count and the availability of the Edgewood Avenue overpass less than two miles away means that the Crossing does not warrant the expenditures required for construction of an overpass. The automatic gates at the Crossing are part of a two-quadrant gate system. Petitioners have proposed that four-quadrant gates and a median be constructed in order to deter motorists from going around the gates. The appeal of a four-quadrant gate system is that it blocks both lanes of travel on both sides of a crossing. A four-quadrant system discourages more people from running the gates than does a two-quadrant gate system. However, people at times run four-quadrant gates and would be likely to do so at the Crossing. An activated four-quadrant gate system could block a vehicle attempting to get out of the Crossing. FDOT uses two-quadrant gate systems because they leave the exit from a crossing unobstructed. An exit for vehicles at the Crossing is especially important because of the unusual width and the constant activation of the gates by switching trains. A four-quadrant gate system would neither redress the extremely dangerous conditions at the crossing nor change the incentives for people to run the gates. FDOT does not currently permit four-quadrant gates at crossings like the one at issue here. Additionally, the Federal Highway Administration has not authorized installation of four- quadrant gates as a standard recommended practice. Other states do use four-quadrant gates on an experimental basis. Finally, installing a four-quadrant gate system at the crossing would cost between $500,000 and $1,500,000. Necessity, Convenience and Utilization of Remaining Routes Where Practical In the area of the Crossing, Old Kings Road connects New Kings Road and Edgewood Avenue. The intersection of Old Kings Road and New Kings Road is located at a distance of approximately 100 yards to the east of the Crossing. New Kings Road is a four-lane highway that curves at its intersection with Old Kings Road, going east through the neighborhood of Grand Park and becoming Kings Road and US 23. Kings Road is a thoroughfare to downtown COJ in this direction. In the other direction, New Kings Road runs north, paralleling the CSXT mainline track, which is to the west for some distance. In this area, New Kings Road forms the western end of the Grand Park neighborhood. As New Kings Road runs north, it becomes U.S. 1/23 about one-half mile from the Old Kings Road intersection. New Kings Road is also a heavily traveled four-lane highway. On the west side of the Crossing, 20th Street West and St. Clair Street, both of which are two-lane streets, dead end into Old Kings Road, with 20th Street West running west and St. Clair Street running south. Further to the west, Old Kings Road intersects with Edgewood Avenue, a four-lane state highway running north and south. The neighborhood directly to the west and south of Old Kings Road is known as the Paxon community. Running north from the intersection with Old Kings Road, Edgewood Avenue intersects New Kings Road (US 1/23). Just before this intersection, Edgewood Avenue separates from grade and becomes a viaduct (overpass) that crosses the CSXT mainline tracks. Traveling this route and then turning south on New Kings Road, a vehicle would reach the intersection of New Kings Road and Old Kings Road. If one is located on the west side of the Crossing, and the Crossing is closed, this route is the shortest distance to the east side of the Crossing. The distance going around the Crossing from west to east (clockwise), starting at the intersection of Old Kings Road and St. Clair Street and finishing at the intersection of Old Kings Road and New Kings Road is approximately 3.26 miles. Going in the opposite direction (counterclockwise) the distance is approximately 3.28 miles. These distances were calculated as averages after making six vehicle travel runs in a clockwise direction (west to east) and five vehicle travel runs in a counterclockwise direction (east to west) respectively. Traveling around the Crossing in a southern direction, either from west to east or east to west would require going all the way to the McQuade Street crossing, or to the Beaver Street viaduct, just south of McQuade Street. The southern route involves distances substantially in excess of those along the Edgewood Avenue - New Kings Road route to the north. All of the major interstates in Jacksonville can be conveniently reached via New Kings Road or Edgewood Avenue. Motorists traveling west on Old Kings Road over the Crossing would have to cross several other railroad crossings in order to reach Edgewood Avenue. In addition to the significant train blockages at the Crossing, significant train blockages exist at Norfolk Southern’s Old Kings Road crossing due to the proximity of the crossing to Norfolk Southern’s Simpson Yard. A little over one-half mile to the west of the Crossing, and to the north and south thereof, the Norfolk Southern mainline tracks run parallel to the CSXT tracks and also cross Old Kings Road. The Norfolk Southern tracks cross St. Clair Street, 20th Street West and Old Kings Road, going south to north. Immediately north of Old Kings Road those tracks comprise the southern end of Norfolk Southern's Simpson Yard, a switching yard like Moncrief Yard. Norfolk Southern trains at times block St. Clair Street, 20th Street West, and Old Kings Road all at the same time. When this occurs, with the Crossing closed, the area inside the triangle formed by Old Kings Road, the Norfolk Southern tracks, and St. Clair Street becomes landlocked, making ingress and egress to the area impossible. Norfolk Southern trains block the Norfolk Southern crossing across Old Kings Road approximately six out of 24 hours a day. CSXT trains block the Crossing on an average of at least nine or more hours a day and as much as 12 hours a day. Trains block Old Kings Road, 20th Street West, and St. Clair Street all three simultaneously approximately nine times a day, for periods ranging between 1.29 minutes and 15 minutes, with an average blockage time of 6.5 minutes. On the high side, the triangle area might be completely blocked for as much as 2.25 hours per day total. On some occasions since the Crossing was closed, people within the triangle may have been unable to enter or leave the triangle for as much as 30 minutes or more at a time. This might have been the case one or more times a day. It is also true that the total blockage would be somewhat decreased with the Crossing open because it would provide an additional entrance or exit. However, even with the Crossing open, trains will still block the triangle area for approximately 40 percent of the time out of a 24-hour day. Motorists using the alternate route over New Kings Road and Edgewood Avenue would encounter one railroad crossing on New Kings Road. Trains block the New Kings Road crossing for up to 30 minutes at a time, less than one hour of total blockage during an average 12-hour period from 7:00 a.m. to 7:00 p.m. Approximately 2000 to 3000 people live in the Grand Park community on the east side of the Crossing. The same number of people live in the Paxon community on the west side of the Crossing. These residents oppose the closing of the Crossing for many reasons, including the following: (a) People from Grand Park on the east side of the Crossing participate in community activities such as Little League Baseball at the Joe Hammond Center near the west side of the Crossing; (b) Children in Grand Park go to school at Paxon Middle School and Paxon High School; and (c) Grocery stores, stores such as Home Depot, and other shopping facilities are located on the west side of the Crossing. If the Crossing remains closed, these people will suffer some inconvenience in having to travel the alternate route over New Kings Road and Edgewood Avenue. However, the Edgewood Avenue overpass on the alternate route provides the Paxon and Grand Park residents access to either side of the Crossing without crossing any of railroad tracks along Old Kings Road. If a motorist traveled a loop from the east side to the west side of the Crossing using the alternate route over New Kings Road and Edgewood Avenue, the total amount of travel time would be between five and 10 minutes depending on the time of day and the amount of traffic. In order to calculate the additional burden on motorists using the alternate route, a reduction would have to be taken for the amount of time that a motorist would have to travel 6,746 feet from the Crossing to Edgewood Avenue. FDOT grades levels of road service from "A" to "F", with "A" being the highest level of service. Roads with an "A" level of service have the ability to handle considerably more vehicle traffic without causing delays in traffic movement. The level of service for New Kings Road and Edgewood Avenue is an "A" level of service. Therefore, the alternate route is in good condition and able to accommodate the additional traffic volume that results from the closure of the Crossing. Due to the significant train blockages at the CSXT and Norfolk Southern Old Kings Road crossings, the alternate route over New Kings Road and Edgewood Avenue is a more reliable route for motorists. The alternate route over New Kings Road and Edgewood Avenue takes significantly less travel time for motorists than Old Kings Road if the CSXT or Norfolk Southern crossings on Old Kings Road are blocked by train traffic. It is undisputed that a substantial volume of rail traffic utilizes the CSXT tracts at Old Kings Road. However, the trains in the Moncrief Yard are no longer than they were in the 1960s. In fact, there are probably 500 less train cars in the yard and traveling across the Crossing than there were back then. CSXT's business operation will not changed or be affected regardless of whether the Crossing is open or closed. CSXT has no business necessity to have the Crossing closed, apart from its dangerousness. It is true that the closing of the Crossing will result in some inconvenience to three residential homes and two businesses, Tremron and RLI, located within the triangle formed by the Norfolk Southern mainline, Old Kings Road and St. Claire Street. However, the triangle existed before these homes were constructed and before the businesses were established. Anyone locating a home or business in the triangle area between two railroad yards and two railroad tracks knew or should have known that train blockages were going to be a problem. Prior to the closing of the Crossing, the homeowners in the triangle used St. Clair Street as their primary access route. They used the Crossing mainly when the St. Clair Street crossing was blocked. Tremron purchased its St. Clair Street business premises in June 2000, after the Crossing had been closed for almost two years. Prior to the purchase of the business premises, Tremron represented to the Jacksonville Economic Development Commission that it had performed an initial feasibility study and concluded that the current roadways and public utilities were adequate to meet the demands for the new facility. Tremron, which manufactures cement pavers, has 10 to 40 trucks entering and leaving the company's premises in a day. If the Crossing were open and not blocked by trains, the best access to I-95 for Tremron's trucks would be through the Crossing. Additionally, because the Crossing is closed, Tremron's employees have problems with access to and from work when the triangle is sealed. Tremron performed surveys of train traffic at the Norfolk Southern St. Clair Street and 20th Street West crossings in October and November 2000, and the Crossing in July 2001. The surveys measured the maximum amount of time the St. Clair Street crossing was blocked by train traffic and not actual vehicle delays at the crossing. A COJ study recorded actual vehicle delays using a proper methodology at ten crossings in the area of Old Kings Road. However, this study did not include a survey of vehicle delays at the Norfolk Southern St. Clair Street crossing. CSXT studied train blockages at the Norfolk Southern St. Clair Street crossing on June 13 and 14, 2001. The results of the CSXT surveys provide persuasive evidence that no significant train delays exist at St. Claire Street. After the date of the Tremron train delay studies at the St. Clair Street crossing, Tremron’s President, Hugh Caron, reached a cooperative arrangement with Norfolk Southern whereby the railroad agreed to reduce train blockages at St. Clair Street. Mr. Caron and local triangle residents, Thomas Miller, Milton Holland and Rebecca Jenkins, testified that the cooperative arrangement was working in a satisfactory manner at the time of the final hearing. If the Crossing was open, Tremron and RLI trucks might be able to look down Old Kings Road to see if a train was blocking the Crossing before heading in that direction. But if a train blocks the tracks as the trucks approach the Crossing, they cannot turn around. In the event of a train blockage, RLI's trucks can use an alternate route through the Norfolk Southern Simpson Yard to circumvent the blocked crossing on an emergency basis. Additionally, Milton Holland, one of the three homeowners who reside in the triangle area, also uses the alternate route through the Norfolk Southern Simpson Yard to circumvent the Crossing when it is blocked. RLI is a trucking business that transports building material. It ships and receives material such as steel coils and plywood to and from the Norfolk Southern boxcars. It also transports metal containers to and from the two major Jacksonville seaports. RLI's facility on Old Kings Road serves as a warehouse for these shipments. RLI's tractor-trailers make 16 to 20 round trips a day from the warehouse to the seaports. Prior to July 1998, the tractor-trailers regularly used the Crossing when it was not blocked by train traffic. Even so, the RLI trucks and personnel were trapped within the triangle every now and then. With the closing of the Crossing, RLI's employees and trucks are trapped within the triangle on a more regular basis. RLI has not missed any shipments since the closure of the Crossing. Mr. Carter testified that, at this point in time, it did not make a difference to him whether the Old Kings Road Crossing remained closed. Centurion’s President, Harold Shafer, testified that none of his four automobile transport businesses, including Centurion, were impacted by the closure of the Crossing. According to Mr. Shafer, he owns a business in the triangle area known as Vehicle Transport, Inc., which builds racking systems for transporting automobiles in containers. Vehicle Transport, Inc., was not operating and had no employees at the time of the final hearing. Mr. Shafer is planning to reopen Vehicle Transport, Inc., contingent upon the business being a successful bidder on several contracts. In that event, Vehicle Transport, Inc., would employ 25 to 30 employees at the St. Clair facility. If Vehicle Transport, Inc., were to reopen for business on St. Claire Street with the Crossing closed, the company would suffer a loss in labor efficiency. However, Mr. Shafer's primary concern would be the occasional unavailability of emergency fire and rescue service, not access for his business resulting from the closing of the Crossing. Petitioners' expert witness, Geoff Pappas, presented evidence of an economic impacts study, concluding that the businesses located within the triangle had suffered economic losses due to the Crossing's closure. Rather than examining the business records of these companies, Mr. Pappas based his analysis on estimated projected losses due to the cost of additional motor fuel consumed by commercial trucks accessing the businesses via the alternate route and due to the cost of paying employees for lost time spent waiting at one of the Norfolk Southern crossings. Mr. Pappas opined that RLI's fuel expense has increased by $3,000 per year since the closing of the Crossing. He concluded that the company has experienced over $55,200 per year in lost labor because of the time the employees spend waiting on trains to clear the tracks. According to Mr. Papas, other trucking companies making deliveries to RLI's facility have also incurred significant financial losses. As to Tremron, Mr. Pappas testified that the company loses approximately $42,000 per year in labor efficiency because the employees spend so much time waiting for the tracks to clear within the triangle. Tremron pays outside truck drivers to deliver its products by the truckload; therefore, Mr. Pappas asserted that firms delivering to Tremron have incurred approximately $13,450 in additional fuel expenditures per year because the Crossing is closed. Mr. Pappas calculated these economic losses for Tremron beginning in 1998 even though Tremron did not open its business facility until 2000. In support for his projected fuel consumption cost analysis, Mr. Pappas assumed that each and every truck would have accessed the triangle area via the Crossing if it had been open. Mr. Pappas also assumed that each and every truck used the alternate route because of the Crossing's closure. On cross-examination, Mr. Pappas had to concede the following: (a) Any truck going to or coming from Interstate 10, Interstate 295, or going to northbound Interstate 95 would access the triangle area using a crossing other than the one at issue here; (b) An origin and destination study needs to be conducted to accurately determine the percentage of commercial traffic actually utilizing the alternate route; (c) If an origin and destination study had been conducted, it would have shown that the trucks would have used the Norfolk Southern crossing at least some of the time; and (d) The analysis did not consider the impact of regular blockages at the Crossing. Mr. Pappas admitted that his analysis was "a last minute review" that could have been "much more accurate." In support of his lost wages cost analysis, Mr. Papas estimated that every employee of each business would make four trips into or out of the triangle area every working day of the year. He estimated that each and every trip would incur a 15-minute delay due to train blockages on the Norfolk Southern line. Thus, Mr. Pappas concluded that each and every employee was estimated to lose one hour every working day. By multiplying the estimated number of employees of each business by the estimated average hourly wage paid by that business, then doubling that amount to account for "indirect wage losses," Mr. Pappas estimated the dollar amount of wages lost daily by each business. By multiplying that product by the number of working days in a year, Mr. Pappas estimated the annual loss to each business. Mr. Pappas's lost wages cost analysis assumed that each and every trip into or out of the triangle area would have been made via the Crossing had it been open. He further assumed that each business paid their employees for the time they spent waiting at a rail crossing coming to or leaving work. On cross-examination, Mr. Pappas conceded the following: (a) Employees would not be paid for time spent waiting at a crossing after leaving work; (b) Employees might not leave work for lunch; and (c) Such trips would have to be deducted from the analysis. There is no doubt that RLI and Tremron have incurred an adverse financial impact due to the closure of the Crossing. However, for the reasons set forth above, Mr. Pappas's cost analysis studies and his testimony in support thereof, cannot be relied upon to accurately reflect that impact. Pedestrian Convenience It is undisputed that the Crossing was not designed for pedestrian or bicycle use. Nevertheless, persuasive evidence indicates that pedestrians and bicyclists used the Crossing before it was closed. They have continued to cross the tracks since CSXT removed the crossing roadway in July 1998. One survey indicates that as many as six pedestrians used the Crossing during a 24-hour period in 2001. Other evidence indicates that at least 15 pedestrians used the Crossing during an eight-hour period in 2001. These pedestrians include a lot of Grand Park community residents who do not own motor vehicles and therefore need to walk or rely on other means of transportation. It would take over an hour for a brisk walker to walk the proposed alternate route around the Crossing, a distance of 3.26 miles. The alternate route is also dangerous for pedestrians because both Edgewood Avenue and New Kings Road (U.S. 1/23) are four-lane highways with no sidewalks. Additionally, the overpass on Edgewood Avenue has cement barriers that block off and reduce the size of the sidewalks so that they are impassible. Thus a pedestrian must walk right next to the auto lanes on the viaduct. Public bus service provided by the Jacksonville Transportation Authority (JTA) connects the neighborhoods on both sides of the Crossing. Some time shortly before the final hearing, a CSXT witness followed two buses that connect the Paxon community and the Grand Park community on the eastern side of the Edgewood Avenue overpass. Additionally, CSXT and COJ provided exhibits which clearly show that pedestrians on both sides of the Crossing have reasonable access to bus transportation over the alternate route, on weekdays and weekends, without having to walk an unreasonable distance. The pedestrian safety hazards at the Crossing substantially outweigh any limited pedestrian inconvenience that would result from the closing of the Crossing. Excessive Restriction to Emergency Type Vehicles Resulting from Closing The Jacksonville Fire and Rescue Department naturally has some concerns that it will be unable to provide timely emergency services in the triangle area when it is sealed. This is more likely to happen with the Crossing closed. Old Kings Road has always been an area of limited access for fire and rescue crews due to the amount of train blockages at the Crossing. The response time of fire and rescue services could be reduced by one minute if the Crossing were open and not blocked by a train. One minute can mean the difference between life and death in an emergency situation. Prior to its closing, emergency vehicles were dispatched from the east side of the Crossing (from fire and rescue Station 7) to cover emergency calls on the west side of the Crossing. Since the closure of the Crossing, the Jacksonville Fire and Rescue Department has modified its response procedures to handle fire and rescue calls for the west side of the Crossing by placing a new fire and rescue station (Station 17) located on Huron Street, west of and less than two miles from the Crossing. Huron Street connects with St. Claire Street south of the Norfolk Southern crossing. Stations 7 and 17 cannot maximize their potential by providing overlapping fire and rescue services because of the closure of the Crossing. Instead, the two stations serve as backup units for each other. The change in fire and rescue response procedures was required in part due to the closure of the Crossing. It also was necessary to meet increasing demand for service on the west side of the Crossing and to ensure emergency service when there were simultaneous multiple calls. RLI and Tremron also are concerned that emergency services will not arrive timely if the Crossing is closed and the triangle area is sealed. RLI has 16 to 18 employees. In August 2001, a Norfolk Southern train was blocking 20th Street West and St. Clair Street when one of RLI's employees required emergency medical services. Norfolk Southern had to break the train so that rescue services could answer the emergency call. The rescue response time on that occasion was 12 minutes. Tremron has 12 employees. Sometime in 2001, Tremron had to call for emergency medical help for an employee who was experiencing an asthma panic attack. The emergency response vehicle took 30 minutes to respond to Tremron's facility. The record does not indicate whether a train sealed the triangle area at that time. Despite the above-referenced incidents, the average response times for the three fire and rescue zones in the area of the Crossing have significantly improved since its closure in 1998. For example, fire and rescue Zone 5370 includes the triangle area. The average response time for fire response in Zone 5370 was 6.1 minutes in 1997 and 4.7 minutes in 1999 and 2000. The average response time for emergency medical response in Zone 5370 was 8.6 minutes in 1997, 5.7 minutes in 1999, and 6.2 minutes in 2000. The Jacksonville Fire and Rescue Department considers six minutes to be the optimum response time for emergency medical response. Regardless of the closing of the Crossing, there may be times when fire and rescue vehicles need to request that a train be broken in order to access the triangle area. While fire and rescue personnel prefer that the Crossing be open, any restriction to fire and rescue vehicles as a result of the closure of the Crossing has not been and will not be excessive. The Jacksonville Sheriff’s Office has good overlapping vehicle coverage on both sides of the Crossing. There was no evidence presented that police calls have been or would be delayed as the result of the closing of the Crossing. There is evidence that the police do not patrol along Old Kings Road as often as they did before the Crossing was closed. Nevertheless, any restrictions to police patrol vehicles as a result of the closure of the Crossing have not been excessive. I. Effect of Closing on Rail Operations And Expenses Although CSXT has no business necessity to keep the Crossing closed, crossing accidents impact the railroad's operations. This occurs when train crews are relieved from duty and lose time from work dealing with the emotional effects or psychological trauma caused by witnessing serious accidents. Additionally, CSXT has significant liability exposure for crossing accidents at the Crossing, including physical and emotional injury claims brought by motorists, passengers, train crews and pedestrians based upon the proximity of the Crossing to the Moncrief Yard. So far, CSXT has paid approximately $500,000 for claims arising out of accidents at the Old Kings Road crossing, exclusive of attorney’s fees and costs. Amtrak has paid approximately $100,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FDOT enter a final order granting CSXT a permit to close the Crossing. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2002. COPIES FURNISHED: William Graessle, Esquire Winegeart & Graessle, P.A. 219 North Newman Street Fourth Floor Jacksonville, Florida 32202-3222 Eric L. Leach, Esquire Milton, Leach, D'Andrea & Ritter, P.A. 815 Main Street, Suite 200 Jacksonville, Florida 32207 Scott A. Matthews, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Ernst D. Mueller, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Harold A. Shafer Centurion Auto Transport 5912 New Kings Road Jacksonville, Florida 32209 James C. Myers, Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether the application submitted by Manatee County to the Florida Department of Transportation to open a railroad-highway grade crossing in Bradenton, Florida, meets the criteria set forth in Florida Administrative Code Rule 14- 57.012(2)(a)1-6.
Findings Of Fact Respondent, Manatee County, filed an application with FDOT for the opening of a public highway-rail grade crossing between railroad mile posts SW 912.27 and SW 911.87, to cross over the CSX Transportation rail line (the "Crossing"). The Crossing is proposed in connection with the expansion of a portion of 44th Avenue East, from 15th Street East extending eastward to 19th Street Court East. The extension of 44th Avenue is part of an east-west corridor within Manatee County that the County plans to extend east to U.S. 301, and is an extension of Cortez Road which terminates at the beaches of Manatee County to the west. The Department's public railroad-highway grade crossing program conducts studies on the more than 3700 public highway- rail grade crossings in Florida and creates an inventory to determine crossings that might be improved for safety reasons and for closure. Florida Administrative Code Rule 14-57.012 establishes the standards for opening and closing public railroad-highway grade crossings. The Department has endeavored to close or consolidate redundant, unsafe, and unnecessary crossings through an initiative from the Federal Railway Administration and the Federal Highway Administration to decrease the number of at- grade railroad crossings by 25 percent. The goal has not yet been met. Petitioner's policies dictate that before it agrees to a new crossing of one of its tracks, three existing crossings should be closed in connection with the opening. The County agrees that it is good policy to close as many existing crossings as possible when opening a new crossing. The closings help to decrease the potential for motor vehicle and train collisions, bicycle and train collisions, and pedestrian collisions with a train or flying debris from a train. Janice Bordelon, the Department's Rail Specialist, oversees the opening and closing of all public highway-rail grade crossings throughout the State of Florida. When she received the County's application for opening on November 21, 2002, she sent a copy of the application to Petitioner. Ms. Bordelon visited the proposed opening site and the surrounding area on at least three occasions. The Department sought input from both the County and Petitioner when considering the application for the Crossing. The land in the vicinity of the Crossing is varied to the north and is designated as light manufacturing. The area to the south is designated as warehousing and vacant industrial. The area to the east of the terminus of the Crossing is agricultural land. Much of the property in the area north and south of the Crossing is vacant, but scheduled for future use as an operations center. The railroad track in the vicinity of the Crossing is owned and operated by Petitioner. CSX Transportation, Inc., is the largest railroad in the eastern United States with approximately 22,000 route miles. Petitioner operates in 23 states, the District of Columbia, and two Canadian provinces. It is headquartered in Jacksonville, Florida. Petitioner's operations in the vicinity of the Crossing currently involve the interchange of cars with the Seminole Gulf Railroad, just south of the Crossing. The purpose of the interchange is to exchange cars between two railroad companies. Current operations involve approximately eight train movements per week, consisting of 20 rail cars in each movement. Trains using this track travel at a speed of 20 miles per hour currently. The speed could change with the approval of the Crossing. The potential exits for Petitioner to increase its utilization of the track in the area of the Crossing. This would occur as a result of increased utilization of rail as a result of growth in both Manatee County and Florida. Based upon the character of the area near the Crossing, the possibility exists for location of a manufacturing facility or distribution center that could result in increased rail traffic. The Department reviewed and analyzed the safety of the proposed 44th Avenue Crossing, including the volume of rail and vehicle traffic, the proximity of existing crossings, the angle of proposed crossing, and surrounding land uses. The Department proposed solutions for mitigation of the identified safety issues through traffic synchronization and other design features such as curbs and signalization. The Intent to Permit issued by the Department recommends that the County pursue the consolidation of unnecessary rail crossings, especially those with light traffic and within a quarter mile of an existing crossing. The County's expert identified two such crossings for potential closure. Mr. G. Rex Nichelson, an expert in railroad crossing openings and closings, testified that the Crossing would ultimately be designed by the joint efforts of Petitioner and the County, resulting in the safest feasible design for the Crossing. He noted that there would be no possibility of a hump at the Crossing and that the design would utilize either an attenuator known as Kwik Curb or a nine-inch, non-mountable median to minimize the opportunity for drivers to circumvent the crossing gates and place themselves in harm's way. Petitioner would also be involved in the final design of the Crossing. The design features would enhance the safety of the Crossing. A flyover crossing, one that would divert traffic from direct contact with the rails at the Crossing, is prohibitively expensive and not justified in this case. The tracks are visible upon approach of the Crossing. The Department considered pedestrian and bicycle traffic at the Crossing, and determined it would not be significant. Trespass can occur in the area of railroad tracks, regardless of whether the Crossing were opened. The Department and the County collaborated to identify possible closures to offset the Crossing, and several were identified as a result. The Department determined the Crossing is necessary to alleviate existing vehicular traffic and serve planned industrial land uses in the area of the Crossing. The Crossing will draw a considerable amount of traffic from the existing roadway system onto a new roadway better designed to accommodate the traffic volume. Currently, traffic in the area of the proposed crossing is heavy, especially at peak times. Alternative routes for east-west vehicular traffic were examined and considered, but the 44th Avenue extension appears to be the safest, most direct way for the County to complete an east-west corridor in the area of the Crossing. The County considered alternative alignments for the Crossing, but none of these were preferable to the one selected due to sharp, unsafe crossing angles and increased right-of-way costs. The Crossing will affect rail operations and expenses due to increased liability and some maintenance costs. The County would also bear increased liability and would bear most, if not all, of the costs of maintenance, operation, and construction. The effect on rail operations would occur primarily during the construction phase of the Crossing. The effects on operations of the rail would be limited since no switching movements of trains in the area of the Crossing will occur, and based upon the fact that only a single track exists in the area of the Crossing. The parties did not attempt to quantify the extent of the effect on Petitioner's operations other than to anecdotally state that delays could occur, affecting crew overtime and the scheduling of cars, which could result in missed connections. Safety hazards exist associated with a crossing during switching operations. When a train is stopped during switching operations, some motorists become impatient and attempt to pull around the train. Some pedestrians even attempt to crawl over or under the train. The locomotive and train engineer could be 20 to 30-car lengths away when this occurs, and not see the pedestrians or motorists when restarting the train. However, current rail switching north and south of the Crossing would not block the Crossing, and no evidence was produced to demonstrate that Petitioner planned to establish additional switching movements in the area. Vehicles carrying hazardous materials or wastes present a concern since they could cause harm if the chemicals or waste were released. Additionally, these vehicles are required to stop at railroad crossings, which could lead to rear-end collisions. School buses approaching the railway must also stop before crossing, which can also lead to rear-end collisions by motorists. The Department considered the design of the grade crossing and road approaches. The Department considered the angle of crossing and made recommendations to minimize any dangers associated with the Crossing. If necessary, modifications would be made to the crossing gates in order to sufficiently protect motorist, bicyclists and pedestrians from crossing the railway when a train approaches. The plans submitted by the County might require modification during the design phase of the project. The project meets or exceeds the Department's engineering and design criteria. The angle of skew of the Crossing is reasonable. The grade in the area of the Crossing is flat and the Crossing itself will be flat.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the requested permit for opening a public railroad-highway grade crossing at 44th Avenue East, between mile posts SW 912.27 and SW 911.87, in Manatee County, Florida. DONE AND ENTERED this 16th day of November, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2006. COPIES FURNISHED: Bruce R. Conroy, Esquire Chief, Administrative Law & Real Property Division Department of Transportation Hayden Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Lawrence N. Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Rodney C. Wade, Esquire Robert Michael Eschenfelder, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206-1000 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Denver Stutler, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether there should be an opening of a public at-grade railroad crossing by New Rail Line Construction in the vicinity of: 1420 feet west of Mile Post SX 904, Seaboard Coastline Railroad (Northwest 9th Street), Okeechobee County, Florida.
Findings Of Fact A railroad grade crossing application was submitted by Petitioner, McArthur Farms, Inc., for "opening a public at-grade rail highway crossing by New Rail Line Construction" in an unincorporated area of Okeechobee County on Northwest 9th Street and Seaboard Coastline Railroad, Railroad Mile Post 1420 feet west of Mile Post SX 904, west 900 feet, east 686 feet. The type of roadway is an existing paved two-lane road. The proposal is for a single track spur to serve one (switcher) train per day at a speed of 4 miles per hour. The cost estimate is $5,000 with the cost of the installation charged to the applicant. The cost estimate for annual maintenance is $800 with the cost of annual maintenance charged to the applicant. The signal installation is to be performed by the applicant and is a "warning sign." The cost of the installation is to be charged to the applicant. The application was submitted on February 18, 1977 and received departmental approval on February 21, 1977. The parties submitted a joint exhibit which is the letter from the Respondent, Seaboard Coastline Railroad Company, stating: "Further reference is made to your letter of February 21, 1977, and my reply of February 25 which had to do with application of McArthur Farms, Inc., for a crossing at grade of existing 15th Street by an industrial spur track at Okeechobee, Fla. This Company will have no objections to this proposal with the understanding that all ex- pense in connection therewith, including cost of signals or other warning devices which may be required, will be assumed by the Industry. Presume we shall be given notice of the hear- ing on this application. Yours very truly, T. B. Hutchenson Assistant Vice President" The following statement was made by the attorney for the Respondent, Florida Department of Transportation, and concurred with by the attorney for the applicant: "In summary, Madam Examiner, the applicant made application for a spur line, located between other spur lines, across a two lane road in a rural area. The crossing will be used to service a feed mill. The movements will be in the daytime. There are less than 5,000 motor vehicles presently using the two lane roadway, traveling at less than 30 miles per hour. The roadway is two lanes. The characteristics of the highway in ques- tion are conducive to manual flagging and stopping of traffic. There will be no night movements of the train. And it meets the factual requirements that fall within an exception to any requirement for active signalization inasmuch as the exception within which it falls is in the afore cited provision of the Florida Administrative Code. (Chapter 14-46.03(3)(g)2., F.A.C.) The applicant will pay for the installation of the crossing and the necessary cross-bucks as minimum signalization, and there will be provided manual flagging for the crossings. So need has been established, safety pre cautions have been arranged and the crossing itself falls within the exceptions to active signalization." The Hearing Officer further finds: The need has been established for the crossing. Safety precautions needed have been arranged.
Recommendation Grant the permit upon the applicant's submitting an agreement with the Respondent railroad for the installation of the crossing and the signalization. DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Harry K. Bender, Esquire Nicholson, Howard, Brawner & Lovett 131 Dade Federal Building 119 East Flagler Street Miami, Florida 33131 Eugene R. Buzard, Esquire Seaboard Coastline Railroad Company 500 Water Street Jacksonville, Florida 32202
