15-006500 Csx Transportation, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, April 22, 2016.

Summary: Respondent, DOT, demonstrated that the proposed public railroad-highway grade crossing meets the applicable criteria and should therefore be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CSX TRANSPORTATION, INC.,

Petitioner,

vs. Case No. 15 - 6500

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

NEW PORT TAMPA BAY CDD HOLDINGS,

LLC, AND NEW PORT TAMPA BAY CDD,

Intervenors.

___________ ____________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

in Tallahassee, Florida, on February 23 and 24, 2016 , before

Linzie F. Bogan, Administrative Law Judge of the Division of

Administr ative Hearings.

APPEARANCES

For Petitioner: Sara Frances Holladay - Tobias, Esquire

McGuireWoods, LLP

Suite 3300

50 North Laura Street

Jacksonville, Florida 32202

For Respondent: Susan Schwartz, Esquire

Department of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0458

For Intervenor s : Christopher Torres, Esquire

Laura J. Bassini, Esquire

Greenberg Traurig, P.A.

Suite 1900

101 East Kennedy Boulevard

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether the opening of a public highway - rail grade crossing

at the proposed intersection of Tyson Avenue and Bridge Street in

Hillsborough County, Florida, meets the criteria set forth in

Florida Administrative Code Rule 14 - 57.012(2)(a)(1 - 3).

PRELIMINARY STATEMENT

On December 8, 2014, the City of Tampa (City), filed an

application with the Department of Transportation (Department)

for a permit to open a public highway - rail grade crossing within

the City of Tampa over a rail spur owned by CSX Transportation,

Inc. (CSX) , as part of a planned extension of Bridge Street

terminating at Tyson Avenue. On September 30, 2015, the

Department issued a Notice of Intent to Permit the crossing . CSX

timely filed a Petition for Formal Administrative H earing

challenging the proposed highway - rail grade crossing .

On November 18, 2015, the Department referred the petition

to the Division of Administrative Hearings (DOAH) for assignment

of an Administrative Law Judge to conduct a disputed - fact

hearing . On November 23, 2015, New Port Tamp a Bay CDD Holdings,

LLC , and New Port Tampa Bay CDD (collectively referred to as

New Port) intervened in the proceeding as the owner of the

property to be served by the proposed highway - rail grade

crossing .

CSX presented the testimony of Thomas Beck Danie l, the

corporate representative for New Port, and Jacob Smith, the

corporate representative for CSX. CSX also presented the

testimony of Richard Ryabik, an expert in traffic engineering.

CSX Exhibits 1 through 6 were admitted into evidence. Joint

Exhibi ts 1 through 5 were also admitted into evidence.

The Department presented the testimony of Calvin Thornton,

an engineer with the City of Tampa , and Laura Regalado, the

DepartmentÓs representative and rail specialist. The

DepartmentÓs Exhibit 1, containing sixteen photographs, was

a dmitted into evidence.

New Port presented the testimony of Randy Coen, an expert in

traffic planning , and Thomas Beck Daniel, its corporate

representative. New PortÓs E xhibit s 1 through 26 were accepted

into evidence. New PortÓ s Exhibits 17 through 25 consist of

train movement videos that are stored on a single flash drive.

The T ranscript of the disputed - fact hearing was filed with

DOAH on Marc h 21, 2016. The parties filed P roposed R ecommended

O rders which were considered by the undersigned.

FINDING S OF FACT

1. The Department has authority over public highway -

railroad grade crossings in Florida, including the authority to

issue permits for the opening and closing of crossings in

accordance with s ection 335.141(1)(a), Florid a Statutes (2015), 1/

and r ule 14 - 57.012.

2. New Port owns a 52 - acre waterfront parcel (New Port

parcel) in Tampa, Florida, bordered to the North by Gandy

Boulevard, the east by Westshore Boulevard, to the south by Tyson

Avenue and to the west by Tampa Bay , in an area known as

Rattlesnake Point.

3. In 2007, the City of Tampa amended its comprehensive

plan to encourage the redevelopment of Rattlesnake Point from

i ndustrial to a r esidential/ c ommercial m ixed - u se w aterfront

c ommunity. The City re - zoned the Ne w Port parcel through PD - A

Zoning 07 - 48 to authorize redevelopment of the parcel in a manner

consistent with the comprehensive plan , which include s

residential, office, commercial , and hotel uses.

4. CSX owns and operates a rail spur that crosses over

Ty son Avenue, just west of Westshore Boulevard and then runs

parallel to the north side of Tyson Avenue (the Henry Spur). CSX

operates trains, averaging five cars in length, along the Henry

Spur transporting goods to and from the two remaining industrial

us ers located on Rattlesnake Point. The trains generally travel

between 11 p . m . and 5 a . m . , Sunday through Thursday , at a speed

between five and ten miles per hour. Vehicular traffic is

stopped by automatic crossbars for approximately one and one - half

minu tes when the train crosses the intersection at Westshore and

Tyson.

5. The Henry Spur prevents public access to the New Port

parcel from the south at Tyson Avenue. Two private highway - rail

grade crossings over the Henry Spur allowed construction

equipme nt to access the New Port parcel from the south during

land clearing.

6. As a condition of the New Port re - zoning, the City

required that Bridge Street, a north - south road located in the

northern portion of the parcel, be extended to provide a north -

south corridor through the entire parcel beginning at Gandy

Boulevard and terminating at Tyson Avenue. PD - A z oning 07 - 48

provide s, at item 32 , that Ð[t]he property Owner/Developer shall,

at no cost to the City, construct/reconstruct and extend Bridge

Street fr om Gandy Boulevard to Tyson Avenue as part of the

redevelopment of the site.Ñ The re - zoning further provide s that

Bridge Street would be a public right - of - way, deeded to the City,

and after obtaining certificates of occupancies for retail,

office, residen tial and hotel space, Ðthe developer will be

required to connect Bridge Street, from Price Avenue to Tyson

Avenue, with Transportation approval, across CSX property, at the

developerÓs sole expense.Ñ

7. In 2007, CSX, the Department, the City of Tampa, New

Port Tampa Bay CDD, and Ecoventure New Port II, LLC, entered into

a Stipulation of Parties (Stipulation) to allow a new public

highway - rail grade crossing over the Henry Spur at Bridge Street

and Tyson Avenue (Crossing) . The Stipulation authorized the

Cr ossing upon the permanent closure of the two private highway -

rail grade crossings along the Henry spur , and two public

highway - rail grade crossings at 5th Avenue and 35th Street in

Tampa, Florida. The Stipulation waived all administrat ive

hearing rights p rovided that all covenants of the agreement were

met within 24 months of execution of the Stipulation .

8. The two public crossings were closed in accordance with

the Stipulation , but due to changes in the Tampa real estate

market, the New Port project did not immediately advance. The

crossing at Bridge Street and Tyson Avenue was not constructed

within 24 months and the S tipulation expired. Ecoventure New

Port II, LLC Ós , interest in the New Port parcel was later assumed

by New Port Tampa Bay Holdings and interest in the projectÓs

development was re - ignited .

9. On December 18, 2014, the City of Tampa, submitted a

Railroad Grade Crossing Application seeking the opening of a

highway - rail grade crossing at Bridge Street and Tyson Avenue ,

which is the same lo cation previously authorized by the

Stipulation. CSX did not agree to an amended stipulation to

allow for the opening of the Crossing.

10. Laura Regalado has managed the DepartmentÓs rail

crossing opening - closure program since August 2014. Ms. Regalado

received and reviewed the City of Tampa Ós application for the

Crossing.

11. Ms. Regalado , in February 2015, visited the locations

referenced in the application and examined Tyson Avenue where the

Crossing was proposed and the two private crossings that were to

be closed. The private crossings were unfinished, rough surfaces

and had no gates, bells, or flashing lights to warn of oncoming

trains. The proposed public Crossing would be required to have

an active warning system of gates, bells, and flashing lights.

Ms. Regalado concluded that although any new crossing presents a

potential danger to the traveling public, the overall safety of

the area would be improved by the opening of one gated crossing,

in exchange for the closing of two public crossings and the

closing of the two unsecured private crossings. To further

improve safety in the area, the Department required improved

signalization at two additional public crossings as a condition

of approval of the Notice of Intent to Permit.

12. Ms. Regala do also examined three side streets to the

west of Westshore Avenue for their potential as alternative

access routes to the New Port property. The three streets - Î

McElroy, Paul and Price - Î currently accommodate apartments,

single - family houses , and light i ndustrial uses. They are narrow

side streets ranging from 16 to 18 feet wide, with on - street

parking and drainage ditches. Ms. Regalado determined that the

streets were not adequate alternative routes as they could not

adequately support two - way traffic, construction vehicles, and

emergency vehicles.

13. At buildout, the New Port development is anticipated to

have an annual average daily traffic (AADT) count of 16,654

vehicles entering and exiting the development. Bridge Street at

Gandy Boulevard is ex pected to be a primary access point at the

northern portion of the New Port parcel. The Gandy Boulevard and

Bridge Street intersection was reconstructed after 2008 to

provide westbound traffic accessing the New Port parcel a left

turn lane onto Bridge Str eet. Eastbound Gandy Boulevard traffic

can turn right onto Bridge Street to access the New Port parcel.

Vehicles leaving the New Port parcel from Bridge Street are

prohibited from turning left (to go west) , but can make a right

onto Gandy Boulevard to tra vel east and can then turn at the

signalized intersection at Gandy and Westshore to travel north ,

south or west (after making a u - turn) .

14. For City approval of the New Port project, additional

access points were required to accommodate westbound traffic and

allow for evacuation and traffic flow. Plans approved by the

City required Bridge Street be extended across the Henry Spur to

Tyson Avenue as the main north - south thoroughfare for the

development. Tyson Avenue is a 24 - foot wide east - west roadway

des igned for two - way traffic and heavy vehicles. The corner of

Tyson and Westshore meets the criteria for signalization, which

would allow controlled turns from Tyson onto Westshore. Once

northbound on Westshore, vehicles desiring to proceed in a

westbound direction can turn left on Gandy Boulevard.

15. Westshore Boulevard is approximately a half - mile long

between Gandy and Tyson, has one north bound lane, one south

bound lane , and a center lane. Northbound traffic on Westshore

frequently backs up, even in the middle of the day, from Gandy

Boulevard past McElroy, Paul and Price Avenues to as far south as

Tyson Avenue. To address some of the congestion, the City has

designed and budgeted for a dual left turn lane from Westshore

onto Gandy Boulevard. The du al turn lanes will extend south of

McElroy Avenue.

16. The City has classified Westshore Boulevard as a failed

roadway because it is unable to accommodate traffic volumes that

currently exist. Consequently, the City denied the developerÓs

initial reques t to have Price Avenue be a gateway to the

development as it would generate additional traffic entering

directly onto Westshore Boulevard at an already congested point.

17. Of the current side streets providing access to

Westshore Boulevard between Gandy Boulevard and Tyson Avenue,

Paul Avenue will not be extended to connect to the New Port

parcel and Hendry Street (referred to as Bridge Street on Google

maps) cannot provide public access as it is a private drive with

lateral parking . As for McElroy Aven ue, only southbound right

turns will be allowed onto Westshore Boulevard due to the

installation of the dual turn lanes for northbound traffic on

Westshore Boulevard. Price Avenue will accommodate southbound

traffic making right turns into and out of the New Port parcel,

but spacing requirements prevent placement of a traffic signal at

Price and Westshore, so northbound vehicles would have difficulty

making a left turn onto Price Avenue . Furthermore, the proximity

of Price Avenue to Tyson Avenue, and the near chronic congestion

on Westshore Boulevard, would make a left turn leaving Price

Avenue onto Westshore Boulevard exceptionally dangerous . Without

the Crossing at Tyson Avenue, Price Avenue is expected to have a

queue of 16.8 cars waiting to access Wes tshore Boulevard during

peak morning hours, and a queue of 23.7 cars during peak

afternoon hours.

18. CSX contend s that an entry point , identified as Retail

Drive, to the New Port parcel could be an alternative route

instead of the connection at Bridge S treet and Tyson. Retail

Drive connects to Westshore Boulevard at the southeastern portion

of the New Port p arcel . New Port is under contract to develop a

12 - acre parcel at that location as a multi - family apartment

complex. To access the apartment comple x, the plans contemplate

Retail Drive as a gated , private driveway connected to Westshore

Boulevard . Due to spacing requirements, traffic signals could

not be constructed at both the intersections of Westshore

Boulevard and Retail Drive and Westshore Boul evard and Tyson

Avenue. Tyson Avenue has already met the requirements for a

traffic signal at the Westshore Boulevard intersection and is

preferred by the City for signalization because it would serve

all of the traffic on Rattlesnake Point, instead of a single

development. Absent a traffic signal, vehicles leaving Retail

Drive are only permitted to make a right turn to head south on

Westshore Boulevard. As only ten percent of the traffic leaving

the New Port development is expected to travel south, Reta il

Drive, if reconstructed as a through road, would not provide an

acceptable alternative route for traffic leaving the New Port

development.

19. The Bridge Street extension over the Henry Spur is

essential to the CityÓs plan for redevelopment of the New Port

development. The Bridge Street extension provides a north - south

corridor parallel to Westshore Boulevard that allows traffic to

enter onto Gandy Boulevard to the north and Tyson Boulevard to

the south.

20. CSX agreed to the Crossing in 2007, but no w objects and

contends that the situation has changed. Specifically, CSX

contends that the amount of rail traffic has increased from an

estimated five train movements per week to an estimated ten train

movements per week. The trains are still of short du ration, with

crossings taking approximately a minute and one - half, twice a

night, four or five times a week. CSX also indicates it has felt

increased pressure from the Federal Railroad Administration (FRA)

to decrease its overall number of crossings in Fl orida. CSX has

not approached FRA for its position on allowing this particular

crossing to open, and the related offset of the closing of four

CSX crossings. CSX expressed concern that they could be subject

to FRA fines if the number of crossings is not reduced, but

offered no credible evidence in support of this contention.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

22 . T he Department bears the burden of proving by a

preponderance of the evidence that the Crossing should be

allowed. Dep't of Transp. v. J. W. C. Co. , 396 So. 2d 778 (Fla.

1st DCA 1981); § 120.57(1)(j), Fla. Stat. A preponderance of the

evidence is defined as Ð the greater weight of the evidence, Ñ or

evidence that Ð more likely than not Ñ tends to prove a certain

proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000).

23. The Department has regulatory authority over all public

high way - railroad grade crossings under s ection 335.141(1)(a),

Florida Statutes, including the authority to issue permits for

the opening of any new crossings.

24. Rule 14 - 57.012(2)(a) provides , in part , as follows :

(a) Opening of Public Railroad - Highway Grade

Crossings. In c onsidering an application to

open a public railroad - highway grade

crossing, the following criteria will apply:

1. Safety.

2. Necessity for rail and vehicle traffic.

3. Alternate routes.

4 . Effect on rail operations and expenses.

5. Closure of one or more public railroad -

highway grade crossings to offset opening a

new crossing.

6. Design of the grade crossing and road

approaches.

7. Presence of multiple tracks and their

effect upon railroad and highway operations.

8. When the estimated highwa y traffic is

30,000 vehicles or more a day across main

line tracks, an engineering and benefit - cost

analysis must be performed by the applicant

to determine if a grade separation is

warranted.

2 5 . CSX does not c hallenge the DepartmentÓs determination

tha t the proposed Crossing meets the criteria under subsections

four through seven of r ule 14 - 57.012(2)(a) . The criteria set

forth in subsections one, two, and three are the only items in

dispute.

2 6 . The Crossing satisfies the first criteri on concerning

Ð safety . Ñ Regarding the issue of Ðsafety,Ñ it is generally

accepted that a ny public railroad - highway grade crossing will

present a safety hazard, and that the DepartmentÓs obligation in

permitting a new crossing is to ensure that it is as safe as

possible, within the bounds of reason. CSX Transp . Inc. v. Dep Ó t

of Transp . and Manatee Cnty . , Case No. 06 - 1491 ( Fla. DOAH Nov .

16, 2006 ; Fla. DOT Dec. 18, 2006 ). T he Department has

established that the proposed Crossing will be safe. Bridge

Street will cross th e rail line at 90 degrees, which is the

preferred angle for the best sight distance. The Crossing is

required by the Notice of Intent to Permit to be constructed in

accordance with Department d esign s tandards to include a concrete

surface, c lass III flash ing lights, automatic gates, and

pedestrian gates at the sidewalks.

27 . The Crossing enhances the overall safety of the

impacted area. The closing of two ungated , rough surfaced

private crossings increases the safety of the Henry rail spur.

The Crossing also provides an alternative evacuation route for

Rattlesnake Point should Westshore Boulevard become blocked at

Tyson Avenue.

28 . The Crossing increases vehicle safety in the area by

facilitating entry onto Westshore Boulevard through a controlled

inter section. Lastly, the Crossing increases safety within Tampa

Bay by providing for the closing of two public rail crossings and

improved signalization at two other crossings.

29 . The Crossing satisfies the second criteri on concerning

Ð necessity. Ñ A parcel does not need to be landlocked before a

crossing will be deemed a necessity. As C hief J udge Cohen noted

in CSX Transportation, Inc. v. Department of Transportation , a

crossing will meet the criteria for necessity where Ð[t]he

opening of the rail crossing will alleviate traffic burdens of

[the] County, and fits within the CountyÓs transportation plan

for traffic flow and emergency operations.Ñ Id. ¶ 44. The

Crossing in this case meets that criteria.

3 0 . The Crossing satisfies the third criterion concern ing

Ðalternative routes.Ñ The Department properly determined that

the existing alternative routes , as well as the planned

alternative route through a private driveway, are in sufficient to

meet th e needs of the new development.

31. The Department has met its burden of demonstrating that

the City of TampaÓs application, which seeks a permit to open a

public highway - rail grade crossing as part of the planned

extension of Bridge Street terminating at Tyson Avenue , meets the

applicable criteria and should ther efore be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED that the Department of

Transportation enter a final order approving the opening of a

public railroad - highway grade crossing at Bridg e Street and Tyson

Avenue in Hillsborough County , Florida.

DONE AND ENTERED this 2 2nd day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearing s

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of April , 2016 .

ENDNOTE

1/ All st atutory references are to 2015 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED:

Sara Frances Holladay - Tobias, Esquire

McGuireWoods, LLP

50 North Laura Street , Suite 3300

Jacksonville, Florida 32202

(eServed)

Susan Schwartz, Esquire

Depar tment of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0458

(eServed)

Laura J. Bassini, Esquire

Greenberg Traurig, P.A.

Suite 1900

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Christopher Torres, Esquire

Green berg Traurig, P.A.

Suite 1900

101 East Kennedy Boulevard

Tampa, Florida 33602

Clarence Harold Houston, III

McGuireWoods, LLP

Suite 3300

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building

605 Suwanne e Street , Mail Station 57

Tallahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 5 8

Tallahassee, Florida 32399 - 0450

(eS erved)

Andrea Shulthiess , Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 5 8

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.