01-001157 Tremron Jacksonville, L.L.C. vs. Department Of Transportation And Csx Transportation, Inc. Status: Closed Recommended Order on Monday, February 11, 2002.

Summary: Railroad crossing meets criteria for closure; safety benefits of crossing closure outweigh any inconvenience.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TREMRON JACKSONVILLE, L.L.C.; )

CITY OF JACKSONVILLE; and )

CENTURION AUTO TRANSPORT, )

)

Petitioners, )

)

vs. ) Case Nos. 01 - 1157

) 01 - 1158

DEPARTMENT OF TRANSPORTATION ) 01 - 1159

and CSX TRANSPORTATION, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on

August 13 through 16, 2001, in Jacksonville, Florida, before the

Division of A dministrative Hearings, by its Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner William Graessle, Esquire

Tremron Winegeart & Graessle, P.A.

Jacksonville, L.L.C.: 219 North Newman Street

Fourth Floor

Jacksonville, Florida 32202 - 3222

For Petitioner Ernst D. Mueller, Esquire

City of Office of the General Counsel

Jacksonville: 117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Petitioner Harold A. Shafer, pro se

Centurion Auto Centurion Auto Transport

Transport: 5912 New Kings Road

Jacksonville, Fl orida 32209

For Respondent Bruce Conroy, Esquire

Department Scott A. Matthews, Esquire

of Transportation: Office of the General Counsel

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

For Respondent Eric L. Leach, Esquire

CSX Transportation Milton, Leach, D'Andrea &

Inc.: Ritter, P.A.

815 Main Street, Suite 200

Jacksonville, Florida 32207

STATEMENT OF 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.

PRELIMINARY STATEMENT

On April 9, 1997, Respondent CSX Transportation, Inc.

("CSXT") filed an application with Respondent Florida Department

of Transportation ("FDOT") to close an at - grade railroad

crossing lo cated in Jacksonville, Florida. On January 31, 2001,

FDOT issued a Notice of Intent to Issue a Permit to close the

subject crossing. On March 9, 2001, Petitioner City of

Jacksonville ("COJ") filed a petition challenging the proposed

granting of the permi t. COJ’s petition was designated Case

No. 01 - 1158. On March 12, 2001, Petitioner Tremron of

Jacksonville, Inc. ("Tremron") filed a petition challenging the

proposed granting of the permitemron’s petition was

designated Case No. 01 - 1157. On March 12, 2001, Petitioner

Centurion Auto Transport, Inc. ("Centurion") filed a petition

challenging the proposed granting of the permit. Centurion’s

petition was designated Case No. 01 - 1159. The petitions were

filed with the Division of Administrative Hearing s on or about

March 23, 2001.

The undersigned entered an Order consolidating the above

referenced cases on April 5, 2001. A Notice of Hearing dated

April 9, 2001, scheduled a formal hearing on May 31, 2001. A

subsequent Order dated April 30, 2001, resch eduled the case for

formal hearing on July 10 through 13, 2001.

The parties jointly moved for a continuance of the formal

hearing on June 21, 2001. An order dated June 25, 2001, granted

a continuance and rescheduled the case for hearing on

August 1 3 through 16, 2001. The parties filed a Pre - Hearing

Stipulation on August 7, 2001.

During the hearing, COJ presented the testimony of Harold

Shafer; Thomas Miller; Faye Barham; Rebecca Jenkins; Lloyd

Washington; Leonard Propper; Jimmy Holderfield; Rich ard Ball;

Winfred Hazen, Jr.; Toufic Khayat; Reginald Fullwood; Talmadge

Ford; and Kevin Carter. COJ presented Exhibits City 1 -

City 12, City 13A - City 13D, City 15 - City 17, City 21 -

City 25, which were admitted into evidence.

Tremron presen ted the testimony of Hugh Caronemron

offered three exhibits, which were accepted into evidence.

Centurion did not present any witnesses. Centurion offered

one exhibit, which was accepted into evidence.

During the hearing, CSXT presented the test imony of David

Teeter; Darryl Murray; Othie Fuller, Jr.; Terry Bright; Robert

Grear; Lorin Mock; Dennis Lynch; and G. Rex Nichelson.

Respondent CSXT presented the testimony of Geoff Pappas in a

post - hearing deposition. CSXT offered 33 exhibits, which wer e

accepted into evidence.

FDOT presented the testimony of Scott Allbritton. FDOT

offered seven exhibits for admission into evidence, all of which

were admitted into evidence except for one composite exhibit,

FDOT 3, and several isolated documents contai ned in two other

composite exhibits, FDOT 1 and FDOT 2 described in the hearing

Transcript, which the undersigned reserved ruling on and which

are hereby excluded.

The Transcript of the proceeding, including the post -

hearing deposition of Geoff Pappas, was filed on September 11,

2001. CSXT, FDOT, and Tremron filed their Proposed Recommended

Orders on November 30, 2001. COJ filed its Proposed Recommended

Order on December 3, 2001. All of these Proposed Recommended

Orders have been considered in the pre paration of this

Recommended Order. Centurian did not file proposed findings of

fact and conclusions of law.

FINDINGS OF FACT

A. History and Current Status of Crossing

1. Old Kings Road has been in existence at least since

1837. The road was locate d in its approximate location in COJ's

city limits prior to the arrival of the railroad. COJ owns and

maintains Old Kings Road.

2. 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 Cro ssing. 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.

3. The Crossing originally consisted of five tracks.

Later it was increased to seven tracks.

4 . In 1995, CSXT requested COJ to consider closing the

Crossing. COJ refused this request.

5. 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 appli cation. However, as

early as January 15, 1998, CSXT was aware that COJ opposed the

closing.

6. 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. S ome months later, COJ

learned that the Crossing might not reopen until December 1998.

7. 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 a pplication

for closure of the Crossing to COJ.

8. 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 an d 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.

9. In a February 2000 letter, COJ again requested FDOT to

reop en 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.

10. 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.

11. 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 .

B. The Crossing

12. 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.

13. 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.

14. 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 Jackson ville,

Florida.

15. 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.

16. 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 sou th, 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.

17. The easternmost track at the Crossing is the CSXT

mainline track. The mainli ne 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 th e 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.

C. Train Movements at Old Kings Road Crossing

18. 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.

19. 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.

20. In order to be switched, a cut of railroad c ars 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.

Of ten 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.

21. CSXT operates between 11 and 22 intermodal trains

daily through Moncrief Yard, which is an unusually extensive

operation. App roximately 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.

22. Due to its proximity to the Moncrief Yard, Old Kings

Road is regularly blo cked 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. Th is is the only CSXT railroad

crossing in the State of Florida that is regularly blocked by

switching movements for extended periods of time.

23. 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.

24. 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.

25. 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 gat es would activate before the trains arrived at the

Crossing.

D. Motor Vehicle Traffic at the Crossing

26. 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 moto r 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.

E. Safety Effects upon Rail and Vehicle Traffic

27. Some of the facts necessary to determine safety

effects upon rail and vehicle traffic are discussed in

paragraph 20.

28. 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

2 0 - 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.

29. Motorists frustrated by the long wait times at the

Crossing re gularly 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 part ially 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.

30. 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.

31. Motor vehicles have also been stranded on the railroad

tracks on severa l occasions when motorists drove around the

lowered gates and left the paved road area at the Crossing.

32. The safety hazards present are unique to the Crossing

based upon the presence of a substantial number of train -

switching movements over the cros sing, 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 ra ilroad

crossings do not contain multiple railroad tracks within yard

limits with trains performing different operations at different

rates of speed.

33. 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, t he

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.

34. 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.

35. 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.

36. 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.

37. In addition to accidents, there have been numerous

near - miss incide nts 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 th e Crossing.

38. 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.

39. 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 trac ks

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.

40. Mr. Kevin Carter, a manager for Resource Logis tics

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 awar e

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.

41. CSXT also presented the testimony of experienced

railroad employees who have wo rked 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.

42. I n 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 exten ded 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.

43. Several of the accidents at the Crossing involved

seriou s 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 199 8.

44. 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 C rossing. On the other hand, it is impossible to completely

block pedestrians from using the Crossing if they are intent on

doing so.

45. In an effort to assess safety hazards at the Crossing,

COJ presented evidence about the FDOT Safety Index. FDOT use s

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 devi ce

upgrades does not determine the dangerousness of a railroad

crossing.

46. 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

w arning 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.

47. Although the Crossing had automatic gates and flashing

s ignal 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 ha ve 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.

48. 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 consi dered for improvements

at a safety level index of 60.

49. 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.

50. 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 cons tructed 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.

51. An activated four - quadrant gate system could block a

vehicle attempting to get out of the Crossing. FDOT uses

two - quadran t 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 syste m would neither redress the extremely

dangerous conditions at the crossing nor change the incentives

for people to run the gates.

52. FDOT does not currently permit four - quadrant gates at

crossings like the one at issue here. Additionally, the Federal

H ighway 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.

F. Necessity, Convenience and Utilization of Remaining

Routes Where Practical

53. In the area of the Crossing, Old Kings Road connects

New Kings Road and Edgewood Avenue. The intersection of Old

Kings Road and New King s Road is located at a distance of

approximately 100 yards to the east of the Crossing.

54. 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 Ro ad and US 23.

Kings Road is a thoroughfare to downtown COJ in this direction.

55. 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 we stern

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.

56. On the west side of the Crossing, 20 th 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 - lan e state highway

running north and south. The neighborhood directly to the west

and south of Old Kings Road is known as the Paxon community.

57. 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

tracksaveling this route and then turning south on New

Kings Road, a vehicle would reach the intersection of New King s

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.

58. The distance going around the Crossing from west to

east (clockwise), star ting 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.

59. Traveling around the Crossing in a s outhern 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 tho se along the

Edgewood Avenue - New Kings Road route to the north.

60. All of the major interstates in Jacksonville can be

conveniently reached via New Kings Road or Edgewood Avenue.

61. Motorists traveling west on Old Kings Road over the

Crossing would hav e 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 cros sing to Norfolk Southern’s Simpson Yard.

62. 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 South ern 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.

63. Norfolk S outhern 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.

64. 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 leas t

nine or more hours a day and as much as 12 hours a dayains

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.

65. On some occasions since the Crossing was closed,

people within the triangle may have been unable to enter or

leav e 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.

66. Motorists using the alternate route over New Kings

Road and Edgewood Avenue would encounter one r ailroad crossing

on New Kings Roadains 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.

67. 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.

68. 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.

69. 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 amo unt 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.

70. 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 f or 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.

71. Due to the significant train b lockages 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 tr avel time for

motorists than Old Kings Road if the CSXT or Norfolk Southern

crossings on Old Kings Road are blocked by train traffic.

72. 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.

73. CSXT's business operation will not changed or be

affecte d regardless of whether the Crossing is open or closed.

CSXT has no business necessity to have the Crossing closed,

apart from its dangerousness.

74. It is true that the closing of the Crossing will

result in some inconvenience to three residential home s 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.

75. Prior to the closing of the Crossing, the homeowners

in the triang le used St. Clair Street as their primary access

route. They used the Crossing mainly when the St. Clair Street

crossing was blocked.

76. Tremron purchased its St. Clair Street business

premises in June 2000, after the Crossing had been closed for

almos t 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 adequ ate to meet the demands for the new

facility.

77. 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 Tremr on'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.

78. Tremron performed surveys of train traffic at the

Norfolk Southern S t. 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 cro ssing.

79. 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.

80. 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.

81. After the date of the Tremro n 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 reside nts, 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.

82. 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.

83. In the event of a train blockage, RLI's trucks can use

an alterna te 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 South ern Simpson Yard to circumvent the

Crossing when it is blocked.

84. 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

transport s metal containers to and from the two major

Jacksonville seaports. RLI's facility on Old Kings Road serves

as a warehouse for these shipments.

85. 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.

86. 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.

87. 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.

88. Vehicle Transport, Inc., was not operating and had no

employees at the time of the final hearing. Mr. Shafer is

planning to reopen Vehicle Transpor t, 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.

89. If Vehicle Transport, Inc., were to reopen for

business on St. C laire 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 c losing of the Crossing.

90. 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 e xamining 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

pay ing employees for lost time spent waiting at one of the

Norfolk Southern crossings.

91. 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.

92. As to Tre mron, 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 triangleemron pays outside truck drivers to

deliver its products b y 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.

93. 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 bee n

open. Mr. Pappas also assumed that each and every truck used

the alternate route because of the Crossing's closure.

94. 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 utilizi ng 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 bloc kages at the Crossing. Mr. Pappas

admitted that his analysis was "a last minute review" that could

have been "much more accurate."

95. In support of his lost wages cost analysis, Mr. Papas

estimated that every employee of each business would make four

tri ps 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 es timated 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 estimat ed 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.

96. 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.

97. On cross - examinati on, 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.

98. 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 accuratel y reflect that impact.

G. Pedestrian Convenience

99. 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.

100. 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 pedest rians 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.

101. 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 s idewalks.

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.

102. Public bus servi ce 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 comm unity 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 an d

weekends, without having to walk an unreasonable distance.

103. The pedestrian safety hazards at the Crossing

substantially outweigh any limited pedestrian inconvenience that

would result from the closing of the Crossing.

H. Excessive Restriction to Emergency Type Vehicles

Resulting from Closing

104. 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 hap pen with the Crossing closed.

105. 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.

106. Prior to its closing, emergency vehicles were

dispatched from the east side of the Crossing (from fire and

resc ue 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.

107. Stations 7 and 17 cannot maximiz e 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.

108. 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.

109. RLI and Tremron also are concerned that emerg ency

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

e mergency 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.

emron 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.

111. 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 i n 2000. The Jacksonville Fire and Rescue

Department considers six minutes to be the optimum response time

for emergency medical response.

112. Regardless of the closing of the Crossing, there may

be times when fire and rescue vehicles need to request t hat 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.

113. 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 t hat 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

114. 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 em otional 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.

CONCLUSIONS OF LAW

115. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

116. CSXT has the burden o f proving by a preponderance of

the evidence that the Crossing should be closed. Department of

Transportation v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

117. FDOT substantially complied with its procedure in

issuing its Notice of Intent to I ssue Permit. CSXT filed the

application for closure in the Spring of 1997. COJ informally

learned about the pending application in the Fall of 1998. FDOT

issued the formal Notice of Intent to Issue Permit on

January 31, 2001. Any deficiency on the part of FDOT in

providing notice to COJ was harmless.

118. FDOT exercises regulatory authority over all public

railroad - highway crossings in the State of Florida pursuant to

Section 335.141, Florida Statutes. City of Plant City v.

Department of Transpo rtation , 399 So. 2d 1075 (Fla. 2d DCA

1981).

119. To carry out its responsibility, FDOT has promulgated

Rules 14 - 46.003(1) and 14 - 46.003(2), Florida Administrative

Code, which provide as follows, in pertinent part:

(1) Purpose . To provide rules for th e

Florida Department of Transportation,

pursuant to Section 335.141, Florida

Statutes, for the establishment of uniform

standards in the issuance of final orders of

the department regarding permits for the

opening and closing of public railroad -

highway g rade crossings. The two basic

objectives of these uniform standards will

be to:

(a) Reduce the accident frequency and

severity of grade crossings, and

(b) Improve rail and motor vehicle

operating efficiency.

(2) Opening and Closing Public Grad e

Crossings . The Department of Transportation

may accept applications for the opening and

closing of public railroad crossings from

the governmental body that has jurisdiction

over the public street or highway; any

railroad operating trains through the

cr ossing; any other applicant for a public

grade crossing provided there is in

existence an agreement between the applicant

and governmental body to assume jurisdiction

as a public crossing; or the Department,

itself, on behalf of the State of Florida.

Open ing or closing of public grade crossings

shall take the form of a Final Order by the

Secretary of Transportation, either

subsequent to administrative hearings

conducted pursuant to Chapter 120, Florida

Statutes, or based upon a voluntary

Stipulation of Par ties executed by all

parties, including the Department.

Acceptance of any application for processing

by the Department shall not be construed as

indicating the Department's position

regarding the application.

120. FDOT has established criteria for determining whether

to issue a permit to close a crossing. Rule 14 - 46.003(3)(b),

Florida Administrative Code, states as follows:

(b) Closing Public Grade Crossings. In

considering the closing of a public grade

crossing, the following criteria will a pply:

1. Necessity, convenience and safety

effects upon rail and vehicle traffic.

2. Utilization of remaining routes where

practical.

3. Effect of closing on rail operations

and expenses.

4. Excessive restriction to emergency

type vehicles resu lting from closing.

121. In determining whether to approve CSXT's application,

FDOT considered the following: (a) the necessity, convenience

and safety of the Crossing to rail and vehicle traffic; (b)

whether other alternate routes may be utilized; (c) the effect

of closing the Crossing on rail operations and expenses; and (d)

whether excessive restrictions to emergency type vehicles will

result from the closure of the Crossing.

122. Although reasonable people may disagree over the

precise details of F DOT’s diagnostic review, it is beyond

dispute that FDOT substantially complied with its own

procedures, and any omissions, have been cured by consideration

of those elements in the course of the formal hearing.

123. The evidence in this case proved that t he Crossing

has significant safety hazards, including but not limited to:

a. The highest number of railroad crossing accidents

in Jacksonville, Florida, including several

involving serious personal injury;

b. Motorists running the gates because of extend ed

train blockages and a general lack of appreciation

of the nature of switching movements;

c. Potential danger of obstructed trains traveling at

high speeds on the CSXT mainline;

d. Visibility obstructions for motorists who cannot

observe fast - moving fr eight or Amtrak passenger

trains on the mainline;

e. Approximately one hundred train movements daily;

f. Five railroad tracks that cross the road at a

skewed angle;

g. Motorist frustration over extended train delays;

h. The proximity of the Crossing t o the Moncrief Yard

switching activities;

i. Trains performing different activities on different

railroad tracks at varying speeds;

j. Pedestrians climbing between freight cars on a

regular basis due to extended train delays; and

k. A substantial likel ihood of future railroad

crossing accidents.

124. Closing the Crossing would enhance its safety. The

benefit of the enhanced safety outweighs any possible

inconvenience to motorist and pedestrians that may result from

closure.

125. The evidence demon strated there is an existing

reliable, alternate route for vehicle traffic over New Kings

Road and Edgewood Avenue. The alternate route eliminates the

substantial train delays and safety hazards that exist at the

Crossing and the Norfolk Southern crossing s. The alternate

route is practical given its minimal additional distance and

time requirements. Public buses provide pedestrians with

reasonable transportation to both sides of the Crossing over the

alternate route.

126. The evidence demonstrate d that closure of the

Crossing might cause some occasional inconvenience to

individuals located in the triangle areaains will block

this area more often if the Crossing is closed. However, the

additional inconvenience is not significant when balanced

against the problems of substantial train delays at the Crossing

and the overwhelming public safety benefits associated with

eliminating the crossing.

127. Closure of the crossing may increase the cost of

doing business for companies located in the tri angle. The

record does not accurately reflect the financial impact on these

companies.

128. CSXT does not have a business necessity to close the

Crossing. On the other hand, closure of the Crossing would have

a beneficial effect on rail operations and expenses based upon

the railroad’s potential liability exposure for accidents. This

exposure is especially significant based on the regular presence

of motorists and pedestrians crossing around lowered gates in

front of trains or between freight cars.

12 9. Finally, the evidence proved that the closure of the

Old Kings Road crossing would not cause an "excessive"

restriction to emergency type vehicles. To the contrary,

response times for emergency vehicles have improved since the

closure in 1998.

130. In tacit recognition of the safety hazards that exist

at the Crossing, Petitioners argued that FDOT should consider

upgrades to the traffic control devices as an alternative to

closure. Under Rule 14 - 46.003, Florida Administrative Code,

FDOT is not requi red to consider the relative merits of

allocating funds to upgrade the traffic control devices at a

railroad crossing as part of its crossing closure determination.

131. FDOT would not consider upgrades to the traffic

control devices based upon the exis tence of signal lights and

gates at the Crossing. Moreover, installation of a

four - quadrant gate system would enhance the danger at the

Crossing because vehicles could be trapped in the path of a

train.

132. In this case, Respondents have shown that the closing

of the Crossing effectuates FDOT’s policy of improved safety at

railroad crossings by eliminating, where reasonably convenient,

the interaction of motor vehicle traffic with rail traffic.

RECOMMENDATION

Based upon the foregoing Finding s 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, Le ach, 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 Jacksonvil le

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 Transporta tion

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

NOTIC E OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the final order in th is case.