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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8TREMRON JACKSONVILLE, L.L.C.; )

12CITY OF JACKSONVILLE; and )

17CENTURION AUTO TRANSPORT, )

21)

22Petitioners, )

24)

25vs. ) Case Nos. 01 - 1157

32) 01 - 1158

36DEPARTMENT OF TRANSPORTATION ) 01 - 1159

43and CSX TRANSPORTATION, INC., )

48)

49Respondents. )

51)

52RECOMMENDED ORDER

54A formal hearing was conducted in this case on

63August 13 through 16, 2001, in Jacksonville, Florida, before the

73Division of A dministrative Hearings, by its Administrative Law

82Judge, Suzanne F. Hood.

86APPEARANCES

87For Petitioner William Graessle, Esquire

92Tremron Winegeart & Graessle, P.A.

97Jacksonville, L.L.C.: 219 North Newman Street

103Fourth Floor

105Jacksonville, Florida 32202 - 3222

110For Petitioner Ernst D. Mueller, Esquire

116City of Office of the General Counsel

123Jacksonville: 117 West Duval Street, Suite 480

130Jacksonville, Florida 32202

133For Petitioner Harold A. Shafer, pro se

140Centurion Auto Centurion Auto Transport

145Transport: 5912 New Kings Road

150Jacksonville, Fl orida 32209

154For Respondent Bruce Conroy, Esquire

159Department Scott A. Matthews, Esquire

164of Transportation: Office of the General Counsel

171605 Suwannee Street, Mail Station 58

177Tallahassee, Florida 32399 - 0450

182For Respondent Eric L. Leach, Esquire

188CSX Transportation Milton, Leach, D'Andrea &

194Inc.: Ritter, P.A.

197815 Main Street, Suite 200

202Jacksonville, Florida 32207

205STATEMENT OF THE ISSUE

209The issue is whether Respondent CSX Transportation, Inc.'s

217railroad crossing located on Old Kings Road in Jacksonville,

226Florida, meets the criteria for closure as set forth in

236Rule 14 - 46.003(2)(b), Florida Administrative Code.

243PRELIMINARY STATEMENT

245On April 9, 1997, Respondent CSX Transportation, Inc.

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

263of Transportation ("FDOT") to close an at - grade railroad

275crossing lo cated in Jacksonville, Florida. On January 31, 2001,

285FDOT issued a Notice of Intent to Issue a Permit to close the

298subject crossing. On March 9, 2001, Petitioner City of

307Jacksonville ("COJ") filed a petition challenging the proposed

317granting of the permi t. COJ’s petition was designated Case

327No. 01 - 1158. On March 12, 2001, Petitioner Tremron of

338Jacksonville, Inc. ("Tremron") filed a petition challenging the

348proposed granting of the permitemron’s petition was

355designated Case No. 01 - 1157. On March 12, 2001, Petitioner

366Centurion Auto Transport, Inc. ("Centurion") filed a petition

376challenging the proposed granting of the permit. Centurion’s

384petition was designated Case No. 01 - 1159. The petitions were

395filed with the Division of Administrative Hearing s on or about

406March 23, 2001.

409The undersigned entered an Order consolidating the above

417referenced cases on April 5, 2001. A Notice of Hearing dated

428April 9, 2001, scheduled a formal hearing on May 31, 2001. A

440subsequent Order dated April 30, 2001, resch eduled the case for

451formal hearing on July 10 through 13, 2001.

459The parties jointly moved for a continuance of the formal

469hearing on June 21, 2001. An order dated June 25, 2001, granted

481a continuance and rescheduled the case for hearing on

490August 1 3 through 16, 2001. The parties filed a Pre - Hearing

503Stipulation on August 7, 2001.

508During the hearing, COJ presented the testimony of Harold

517Shafer; Thomas Miller; Faye Barham; Rebecca Jenkins; Lloyd

525Washington; Leonard Propper; Jimmy Holderfield; Rich ard Ball;

533Winfred Hazen, Jr.; Toufic Khayat; Reginald Fullwood; Talmadge

541Ford; and Kevin Carter. COJ presented Exhibits City 1 -

551City 12, City 13A - City 13D, City 15 - City 17, City 21 -

566City 25, which were admitted into evidence.

573Tremron presen ted the testimony of Hugh Caronemron

581offered three exhibits, which were accepted into evidence.

589Centurion did not present any witnesses. Centurion offered

597one exhibit, which was accepted into evidence.

604During the hearing, CSXT presented the test imony of David

614Teeter; Darryl Murray; Othie Fuller, Jr.; Terry Bright; Robert

623Grear; Lorin Mock; Dennis Lynch; and G. Rex Nichelson.

632Respondent CSXT presented the testimony of Geoff Pappas in a

642post - hearing deposition. CSXT offered 33 exhibits, which wer e

653accepted into evidence.

656FDOT presented the testimony of Scott Allbritton. FDOT

664offered seven exhibits for admission into evidence, all of which

674were admitted into evidence except for one composite exhibit,

683FDOT 3, and several isolated documents contai ned in two other

694composite exhibits, FDOT 1 and FDOT 2 described in the hearing

705Transcript, which the undersigned reserved ruling on and which

714are hereby excluded.

717The Transcript of the proceeding, including the post -

726hearing deposition of Geoff Pappas, was filed on September 11,

7362001. CSXT, FDOT, and Tremron filed their Proposed Recommended

745Orders on November 30, 2001. COJ filed its Proposed Recommended

755Order on December 3, 2001. All of these Proposed Recommended

765Orders have been considered in the pre paration of this

775Recommended Order. Centurian did not file proposed findings of

784fact and conclusions of law.

789FINDINGS OF FACT

792A. History and Current Status of Crossing

7991. Old Kings Road has been in existence at least since

8101837. The road was locate d in its approximate location in COJ's

822city limits prior to the arrival of the railroad. COJ owns and

834maintains Old Kings Road.

8382. The subject of this proceeding is a public at - grade

850railroad crossing ("the Crossing"), designated by FDOT as

860Crossing No . 621191C. The Crossing is located in the

870northwestern part of COJ in Duval County, Florida. The Crossing

880intersects with Old Kings Road, which has always been an

890important means of ingress and egress to downtown COJ for

900residents located west of the Cro ssing. A neighborhood

909association, the Grand Park Civic Club, requested that COJ build

919an overpass over the Crossing due to train blockages in the

9301930's.

9313. The Crossing originally consisted of five tracks.

939Later it was increased to seven tracks.

9464 . In 1995, CSXT requested COJ to consider closing the

957Crossing. COJ refused this request.

9625. In April 1997, CSXT filed an application with FDOT to

973close the Crossing. Neither CSXT nor FDOT gave COJ immediate

983notice that FDOT was considering the appli cation. However, as

993early as January 15, 1998, CSXT was aware that COJ opposed the

1005closing.

10066. In July 1998, CSXT closed the Crossing for repairs with

1017COJ's acquiescence. COJ understood originally that the repairs

1025would last from two to four weeks. S ome months later, COJ

1037learned that the Crossing might not reopen until December 1998.

10477. COJ learned about CSXT's application to close the

1056Crossing sometime during the fall of 1998. At that time, FDOT

1067verbally conveyed the information about the pending a pplication

1076for closure of the Crossing to COJ.

10838. In October 1998, COJ wrote a letter requesting FDOT's

1093assistance in opening the Crossing because FDOT had not issued a

1104permit to close it. Then in February 1999, CSXT advised FDOT by

1116letter that CSXT an d COJ were engaged in negotiations regarding

1127closure of the Crossing. In August 1999, FDOT suspended

1136consideration of the application pending the on - going

1145negotiations between COJ and CSXT.

11509. In a February 2000 letter, COJ again requested FDOT to

1161reop en the Crossing until such time as formal hearings were held

1173and/or the parties could enter into a stipulation. FDOT's

1182consideration of the application remained suspended at that

1190time.

119110. In October 2000, CSXT requested that FDOT reopen the

1201file on its application. By letter November 1, 2000, FDOT

1211advised CSXT that the file would be reopened.

121911. On January 31, 2001, FDOT issued a Notice of Intent to

1231Issue a Permit to close the Crossing. The Crossing remained

1241closed at the time of the formal hearing .

1250B. The Crossing

125312. CSXT conducts freight rail operations on railroad

1261tracks that run in a northwest - southeast direction across Old

1272Kings Road in Jacksonville, Florida. The Crossing is located

1281within the yard limits of CSXT’s Moncrief Yard, a large

1291classification yard for CSXT trains.

129613. CSXT removed the two westernmost tracks and the

1305roadbed at the Crossing after closing it in July 1998.

1315Currently, the Crossing has a total of five parallel railroad

1325tracks that cross the road at a skewed angle of approximately 20

1337degrees.

133814. The distance across the existing tracks is 276 feet.

1348On both sides of the Crossing, Old Kings Road is a two - lane

1362highway with no sidewalks. The Crossing has more railroad

1371tracks than any other railroad crossing in Jackson ville,

1380Florida.

138115. The Crossing has automatic crossing gates and flashing

1390signal lights. CSXT disconnected these traffic control devices

1398when CSXT closed the Crossing in July 1998. FDOT has no plans

1410to upgrade the traffic control devices regardless of whether the

1420Crossing is reopened or remains closed.

142616. The Crossing is located in an urban area. The next

1437crossing point over the CSXT rail lines is located at the

1448Edgewood Avenue Bridge, 1.35 miles to the north as measured

1458along the rails. Going sou th, again measuring along the rails,

1469the next CSXT crossing is 1.7 miles away at McQuade Street. The

1481McQuade Street crossing is located at the southern end of

1491Moncrief Yard.

149317. The easternmost track at the Crossing is the CSXT

1503mainline track. The mainli ne track is the primary track for

1514Amtrak passenger trains and CSXT freight trains that do not

1524require switching or maintenance in the Moncrief Yard. The

1533speed limit for trains using the mainline track is 40 miles per

1545hour. The remaining four tracks at th e Crossing are yard

1556tracks, which CSXT uses for the assembly of trains on the north

1568end of the Moncrief Yard, as well as inbound and outbound

1579freight train arrivals and departures. The four yard tracks

1588have a speed limit of 10 miles per hour.

1597C. Train Movements at Old Kings Road Crossing

160518. There are approximately 100 train movements, including

1613switching movements across the Crossing on a daily basis.

1622Switching movements in the Moncrief Yard involve the assembly

1631and disassembly of trains through the movement of freight cars

1641into designated yard tracks. Switching movements take place in

1650the Moncrief Yard 24 hours per day, seven days per week, except

1662for Christmas, Thanksgiving and select holidays.

166819. Switching movements are carried out primarily at the

1677north end of Moncrief Yard near the Crossing because the track

1688layout at that end is best suited for such operations. Other

1699parts of the yard do not lend themselves to efficient switching

1710operations.

171120. In order to be switched, a cut of railroad c ars must

1724be moved back and forth repeatedly, with pauses between

1733movements. Once switching is complete, federal law requires the

1742train's brakes to be checked. The train then must wait for the

1754track to be clear of other train traffic before departing.

1764Of ten a cut of railroad cars will pull close enough to the

1777Crossing to activate the warning lights and gates without

1786actually blocking the roadway. When that happens, a motorist

1795will see an open roadway and a stopped train that is the

1807apparent cause of the activation of the warning devices. This

1817circumstance creates a uniquely hazardous situation for

1824motorists and pedestrians.

182721. CSXT operates between 11 and 22 intermodal trains

1836daily through Moncrief Yard, which is an unusually extensive

1845operation. App roximately 40 locomotives per day are serviced in

1855the yard. Amtrak operates daily approximately nine scheduled

1863movements over the mainline track throughout the day and night.

187322. Due to its proximity to the Moncrief Yard, Old Kings

1884Road is regularly blo cked by trains engaged in switching

1894movements that travel back and forth across the Crossing, in

1904addition to other train traffic. There is no practical method

1914of operating the Moncrief Yard without blocking Old Kings Road

1924for extended periods of time. Th is is the only CSXT railroad

1936crossing in the State of Florida that is regularly blocked by

1947switching movements for extended periods of time.

195423. On November 29 and 30, 2000, CSXT studied the amount

1965of time that the Crossing was blocked by train movements . The

1977study demonstrated that train traffic blocked the Crossing for a

1987total of 12 hours and six minutes during a 24 - hour period of

2001time. Such blockage has consistently existed at the Crossing

2010for 30 years or more.

201524. On July 31 through August 2, 2001 , COJ studied the

2026amount of time that the Crossing was blocked by train movements.

2037The results of the COJ study were consistent with the CSXT study

2049of train blockages at the Crossing.

205525. The surveys performed by CSXT and COJ to determine the

2066time that trains blocked the Crossing measured only the amount

2076of time that one or more trains actually blocked Old Kings Road.

2088If the Crossing were open to traffic, Old Kings Road would be

2100blocked for even longer periods of time because the flashing

2110lights and gat es would activate before the trains arrived at the

2122Crossing.

2123D. Motor Vehicle Traffic at the Crossing

213026. From 1991 to 1997, the average daily traffic volume in

2141the vicinity of the Old Kings Road crossing was less than 2,000

2154vehicles per day. The moto r vehicle traffic volume at Old Kings

2166Road is considered a low traffic count by FDOT standards. The

2177traffic volume at the Crossing is far too low to justify

2188expending the funds and other resources necessary to construct

2197an overpass.

2199E. Safety Effects upon Rail and Vehicle Traffic

220727. Some of the facts necessary to determine safety

2216effects upon rail and vehicle traffic are discussed in

2225paragraph 20.

222728. Due to the height and length of slow - moving or stopped

2240trains involved in switching operations on some or all of the

2251four railroad tracks to the west of the CSXT main line,

2262motorists approaching the crossing from the west cannot see

2271fast - moving trains, including Amtrak passenger trains,

2279approaching the Crossing on the CSXT mainline. Likewise, the

22882 0 - degree skew of the intersection makes it difficult for

2300westbound motorists on the east side of the Crossing to look to

2312their left to determine whether a northbound train is

2321approaching.

232229. Motorists frustrated by the long wait times at the

2332Crossing re gularly drive around the crossing gates. They take

2342this risk often under the mistaken belief that stopped or slow

2353moving trains have activated the signal lights and gates. At

2363times vehicles fall off the roadway as drivers attempt to go

2374around trains part ially blocking the roadway. Drivers also

2383become distracted by the beveled and rough roadway surface

2392between the numerous tracts. These circumstances, together with

2400the regular and extended blockages, give motorists a high

2409probability of interacting with train traffic while

2416simultaneously almost inviting them to run the gates.

242430. COJ’s neighborhood witnesses testified that they

2431either personally drove around the lowered crossing gates at the

2441Crossing or observed other motorists driving around the gates in

2451order to avoid extended train delays. COJ witnesses, Rebecca

2460Jenkins and Talmadge Ford, have observed two to four vehicles

2470driving around the crossing gates at the same time.

247931. Motor vehicles have also been stranded on the railroad

2489tracks on severa l occasions when motorists drove around the

2499lowered gates and left the paved road area at the Crossing.

251032. The safety hazards present are unique to the Crossing

2520based upon the presence of a substantial number of train -

2531switching movements over the cros sing, multiple tracks with

2540trains of varying speeds, motorist frustration over train

2548delays, obstructions to visibility and a general misapprehension

2556by the motoring public of the nature of yard switching

2566movements. Unlike the Crossing, the majority of ra ilroad

2575crossings do not contain multiple railroad tracks within yard

2584limits with trains performing different operations at different

2592rates of speed.

259533. Due to the skewed angle of the Crossing, the presence

2606of five railroad tracks, and the location of the crossing gates,

2617the distance that a motor vehicle or pedestrian must travel to

2628traverse the Crossing is 397 feet. Even if the signal lights

2639were relocated closer to the railroad tracks, the distance

2648across Old Kings Road would be approximately 276 feet, t he

2659actual distance across the tracks. The substantial length and

2668the skewed angle of the Crossing reduce visibility for motorists

2678and increase the probability of a crossing accident.

268634. The use of commercial trucks over the Crossing on a

2697regular basis would substantially increase the danger of an

2706accident due to the distance that a truck must travel over the

2718Crossing under normal operating conditions. Because of their

2726length, large commercial trucks take longer to clear a crossing

2736than a car traveling at the same speed.

274435. There were at least 12 railroad - crossing accidents at

2755the Crossing from 1975 until 1998. Most of these accidents

2765occurred on account of violation of law by drivers or

2775pedestrians. One of these, a motor vehicle accident, resulted

2784in a fatality. Six of the eight accidents involving a motorist

2795resulted in no personal injury. Even so, the Crossing had the

2806highest number of grade - crossing accidents in Jacksonville,

2815Florida, from 1975 until 1998.

282036. In January 2001, COJ commissioned a Jacksonville

2828engineering firm, Waitz and Moye, to perform a study of 10

2839railroad crossings in the northwest quadrant of Jacksonville,

2847Florida. This study included the Crossing, which had the

2856highest number of accidents of the 10 railroad crossings. There

2866were twice as many accidents at the Crossing than the crossing

2877with the second highest number of accidents, despite the fact

2887that the Crossing had one of the lowest traffic volumes.

289737. In addition to accidents, there have been numerous

2906near - miss incide nts at the Crossing, where motorists driving

2917around the crossing gates narrowly avoided injuries. Due to

2926obstructions to visibility, an Amtrak train traveling 40 miles

2935per hour on the CSXT main line does not have sufficient time to

2948avoid a collision at th e Crossing.

295538. Mr. Darryl Murray, the Service Manager for Amtrak,

2964testified that he regularly operated trains over the Crossing

2973from 1974 until 1986 with the Seaboard Coastline Railroad, and

2983from 1986 until 1991 with Amtrak. Since 1991, Mr. Murray has

2994directly supervised Amtrak train crews that operate over the

3003Crossing.

300439. Mr. Murray testified there are other crossings that

3013are just as busy as the Crossing. He admitted that the Crossing

3025would be safer in the future because the two western - most trac ks

3039have been removed. However, according to Mr. Murray, the

3048Crossing is one of the most dangerous railroad crossings that he

3059has encountered during his railroad career. According to

3067Mr. Murray, a crossing accident involving an Amtrak passenger

3076train traveling 40 miles per hour at Old Kings Road could result

3088in serious personal injury or death to the motor vehicle

3098occupants and train crew; derailment of the train; and injuries

3108to Amtrak passengers due to the emergency braking application of

3118the train. In the early to mid 1990's, Mr. Murray personally

3129investigated an accident involving an Amtrak train and a

3138passenger vehicle at the Crossing, which resulted in serious

3147personal injuries to the motorist.

315240. Mr. Kevin Carter, a manager for Resource Logis tics

3162International ("RLI"), testified that if the Crossing were

3172re - opened, RLI trucks carrying 80,000 pounds of aluminum would

3184use it during transport. Mr. Carter has seen one or two of his

3197truck drivers go around the gates at the Crossing and was awar e

3210of other trucks going around the lowered gates. Mr. Carter has

3221disciplined at least one of his drivers for driving around

3231railroad crossing gates in the down position.

323841. CSXT also presented the testimony of experienced

3246railroad employees who have wo rked in the Moncrief Yard at the

3258Crossing on a daily basis for many years. CSXT employees

3268testified that, due to its location in the middle of an active

3280switching yard, the Crossing is the most dangerous railroad

3289crossing in Jacksonville, Florida.

329342. I n addition to motor vehicle accidents at the

3303Crossing, the evidence established a serious safety hazard

3311involving pedestrians. Prior to its closing in 1998,

3319pedestrians regularly climbed between freight cars stopped at

3327the Crossing in order to avoid exten ded train blockages.

3337Additionally, pedestrians regularly placed their bicycles over

3344or under the coupling mechanism that connects railroad cars

3353while attempting to climb between railroad cars.

336043. Several of the accidents at the Crossing involved

3369seriou s injuries to pedestrians who were trapped between freight

3379cars when the train suddenly moved. The number of pedestrians

3389at the Crossing has decreased since its closure. There have

3399been no accidents at the Old Kings Road crossing since its

3410closure in 199 8.

341444. If the Crossing were closed, protective measures could

3423be taken to more effectively discourage trespasser access,

3431including cul - de - sacs, road barriers, fencing and signage. COJ

3443has determined there is sufficient land to build cul - de - sacs at

3457the C rossing. On the other hand, it is impossible to completely

3469block pedestrians from using the Crossing if they are intent on

3480doing so.

348245. In an effort to assess safety hazards at the Crossing,

3493COJ presented evidence about the FDOT Safety Index. FDOT use s

3504the safety index to determine the prioritization of upgrades for

3514crossings that do not have automatic gates and signal lights.

3524FDOT does not utilize the safety index for its closure analysis.

3535The FDOT safety index for prioritizing crossing - warning devi ce

3546upgrades does not determine the dangerousness of a railroad

3555crossing.

355646. The federal government requires FDOT to create the

3565safety index annually. From among the top 800 crossings, FDOT

3575determines which crossings receive funding for improvement of

3583w arning devices. The maximum protection that FDOT currently

3592permits is flashing lights and automatic gates. Crossings that

3601rank in the top 800 on the safety index and that already have

3614lights and gates do not receive funding because no further

3624improvement is available. In effect, the safety index report

3633serves only to identify problematic crossings. With annual

3641funding of only approximately $5 million, FDOT improves about 30

3651crossings per year.

365447. Although the Crossing had automatic gates and flashing

3663s ignal lights before they were disconnected in July 1998, the

3674current FDOT Safety Index indicates that the Crossing has a

3684safety index rank of 561 out of 4500 railroad crossings in the

3696state. This does not mean that FDOT considers 560 other

3706crossings to ha ve greater priority for upgrades than the

3716Crossing. Because the safety index report continues to assign a

3726high rank to the Crossing, which already has lights and gates,

3737the only way FDOT can make the Crossing safer is to close it.

375048. Even so, using the FDOT safety index ranking and

3760correct factual assumptions, the safety index number for the

3769Crossing is approximately 50, which is less than the marginal

3779safety level index number of 60 set by FDOT. FDOT guidelines

3790indicate that a crossing should be consi dered for improvements

3800at a safety level index of 60.

380749. FDOT uses a separate program to consider overpass

3816construction for crossings. As stated above, the low traffic

3825count and the availability of the Edgewood Avenue overpass less

3835than two miles away means that the Crossing does not warrant the

3847expenditures required for construction of an overpass.

385450. The automatic gates at the Crossing are part of a

3865two - quadrant gate system. Petitioners have proposed that

3874four - quadrant gates and a median be cons tructed in order to

3887deter motorists from going around the gates. The appeal of a

3898four - quadrant gate system is that it blocks both lanes of travel

3911on both sides of a crossing. A four - quadrant system discourages

3923more people from running the gates than does a two - quadrant gate

3936system. However, people at times run four - quadrant gates and

3947would be likely to do so at the Crossing.

395651. An activated four - quadrant gate system could block a

3967vehicle attempting to get out of the Crossing. FDOT uses

3977two - quadran t gate systems because they leave the exit from a

3990crossing unobstructed. An exit for vehicles at the Crossing is

4000especially important because of the unusual width and the

4009constant activation of the gates by switching trains. A

4018four - quadrant gate syste m would neither redress the extremely

4029dangerous conditions at the crossing nor change the incentives

4038for people to run the gates.

404452. FDOT does not currently permit four - quadrant gates at

4055crossings like the one at issue here. Additionally, the Federal

4065H ighway Administration has not authorized installation of four -

4075quadrant gates as a standard recommended practice. Other states

4084do use four - quadrant gates on an experimental basis. Finally,

4095installing a four - quadrant gate system at the crossing would

4106cost between $500,000 and $1,500,000.

4114F. Necessity, Convenience and Utilization of Remaining

4121Routes Where Practical

412453. In the area of the Crossing, Old Kings Road connects

4135New Kings Road and Edgewood Avenue. The intersection of Old

4145Kings Road and New King s Road is located at a distance of

4158approximately 100 yards to the east of the Crossing.

416754. New Kings Road is a four - lane highway that curves at

4180its intersection with Old Kings Road, going east through the

4190neighborhood of Grand Park and becoming Kings Ro ad and US 23.

4202Kings Road is a thoroughfare to downtown COJ in this direction.

421355. In the other direction, New Kings Road runs north,

4223paralleling the CSXT mainline track, which is to the west for

4234some distance. In this area, New Kings Road forms the we stern

4246end of the Grand Park neighborhood. As New Kings Road runs

4257north, it becomes U.S. 1/23 about one - half mile from the Old

4270Kings Road intersection. New Kings Road is also a heavily

4280traveled four - lane highway.

428556. On the west side of the Crossing, 20 th Street West and

4298St. Clair Street, both of which are two - lane streets, dead end

4311into Old Kings Road, with 20th Street West running west and

4322St. Clair Street running south. Further to the west, Old Kings

4333Road intersects with Edgewood Avenue, a four - lan e state highway

4345running north and south. The neighborhood directly to the west

4355and south of Old Kings Road is known as the Paxon community.

436757. Running north from the intersection with Old Kings

4376Road, Edgewood Avenue intersects New Kings Road (US 1/23). Just

4386before this intersection, Edgewood Avenue separates from grade

4394and becomes a viaduct (overpass) that crosses the CSXT mainline

4404tracksaveling this route and then turning south on New

4413Kings Road, a vehicle would reach the intersection of New King s

4425Road and Old Kings Road. If one is located on the west side of

4439the Crossing, and the Crossing is closed, this route is the

4450shortest distance to the east side of the Crossing.

445958. The distance going around the Crossing from west to

4469east (clockwise), star ting at the intersection of Old Kings Road

4480and St. Clair Street and finishing at the intersection of Old

4491Kings Road and New Kings Road is approximately 3.26 miles.

4501Going in the opposite direction (counterclockwise) the distance

4509is approximately 3.28 miles . These distances were calculated as

4519averages after making six vehicle travel runs in a clockwise

4529direction (west to east) and five vehicle travel runs in a

4540counterclockwise direction (east to west) respectively.

454659. Traveling around the Crossing in a s outhern direction,

4556either from west to east or east to west would require going all

4569the way to the McQuade Street crossing, or to the Beaver Street

4581viaduct, just south of McQuade Street. The southern route

4590involves distances substantially in excess of tho se along the

4600Edgewood Avenue - New Kings Road route to the north.

461060. All of the major interstates in Jacksonville can be

4620conveniently reached via New Kings Road or Edgewood Avenue.

462961. Motorists traveling west on Old Kings Road over the

4639Crossing would hav e to cross several other railroad crossings in

4650order to reach Edgewood Avenue. In addition to the significant

4660train blockages at the Crossing, significant train blockages

4668exist at Norfolk Southern’s Old Kings Road crossing due to the

4679proximity of the cros sing to Norfolk Southern’s Simpson Yard.

468962. A little over one - half mile to the west of the

4702Crossing, and to the north and south thereof, the Norfolk

4712Southern mainline tracks run parallel to the CSXT tracks and

4722also cross Old Kings Road. The Norfolk South ern tracks cross

4733St. Clair Street, 20th Street West and Old Kings Road, going

4744south to north. Immediately north of Old Kings Road those

4754tracks comprise the southern end of Norfolk Southern's Simpson

4763Yard, a switching yard like Moncrief Yard.

477063. Norfolk S outhern trains at times block St. Clair

4780Street, 20th Street West, and Old Kings Road all at the same

4792time. When this occurs, with the Crossing closed, the area

4802inside the triangle formed by Old Kings Road, the Norfolk

4812Southern tracks, and St. Clair Street becomes landlocked, making

4821ingress and egress to the area impossible.

482864. Norfolk Southern trains block the Norfolk Southern

4836crossing across Old Kings Road approximately six out of 24 hours

4847a day. CSXT trains block the Crossing on an average of at leas t

4861nine or more hours a day and as much as 12 hours a dayains

4875block Old Kings Road, 20th Street West, and St. Clair Street all

4887three simultaneously approximately nine times a day, for periods

4896ranging between 1.29 minutes and 15 minutes, with an average

4906blockage time of 6.5 minutes. On the high side, the triangle

4917area might be completely blocked for as much as 2.25 hours per

4929day total.

493165. On some occasions since the Crossing was closed,

4940people within the triangle may have been unable to enter or

4951leav e the triangle for as much as 30 minutes or more at a time.

4966This might have been the case one or more times a day. It is

4980also true that the total blockage would be somewhat decreased

4990with the Crossing open because it would provide an additional

5000entrance or exit. However, even with the Crossing open, trains

5010will still block the triangle area for approximately 40 percent

5020of the time out of a 24 - hour day.

503066. Motorists using the alternate route over New Kings

5039Road and Edgewood Avenue would encounter one r ailroad crossing

5049on New Kings Roadains block the New Kings Road crossing for

5060up to 30 minutes at a time, less than one hour of total blockage

5074during an average 12 - hour period from 7:00 a.m. to 7:00 p.m.

508767. Approximately 2000 to 3000 people live in the Grand

5097Park community on the east side of the Crossing. The same

5108number of people live in the Paxon community on the west side of

5121the Crossing. These residents oppose the closing of the

5130Crossing for many reasons, including the following: (a) People

5139from Grand Park on the east side of the Crossing participate in

5151community activities such as Little League Baseball at the Joe

5161Hammond Center near the west side of the Crossing; (b) Children

5172in Grand Park go to school at Paxon Middle School and Paxon High

5185School; and (c) Grocery stores, stores such as Home Depot, and

5196other shopping facilities are located on the west side of the

5207Crossing.

520868. If the Crossing remains closed, these people will

5217suffer some inconvenience in having to travel the alternate

5226route over New Kings Road and Edgewood Avenue. However, the

5236Edgewood Avenue overpass on the alternate route provides the

5245Paxon and Grand Park residents access to either side of the

5256Crossing without crossing any of railroad tracks along Old Kings

5266Road.

526769. If a motorist traveled a loop from the east side to

5279the west side of the Crossing using the alternate route over New

5291Kings Road and Edgewood Avenue, the total amount of travel time

5302would be between five and 10 minutes depending on the time of

5314day and the amo unt of traffic. In order to calculate the

5326additional burden on motorists using the alternate route, a

5335reduction would have to be taken for the amount of time that a

5348motorist would have to travel 6,746 feet from the Crossing to

5360Edgewood Avenue.

536270. FDOT grades levels of road service from "A" to "F",

5373with "A" being the highest level of service. Roads with an "A"

5385level of service have the ability to handle considerably more

5395vehicle traffic without causing delays in traffic movement. The

5404level of service f or New Kings Road and Edgewood Avenue is an

"5417A" level of service. Therefore, the alternate route is in good

5428condition and able to accommodate the additional traffic volume

5437that results from the closure of the Crossing.

544571. Due to the significant train b lockages at the CSXT and

5457Norfolk Southern Old Kings Road crossings, the alternate route

5466over New Kings Road and Edgewood Avenue is a more reliable route

5478for motorists. The alternate route over New Kings Road and

5488Edgewood Avenue takes significantly less tr avel time for

5497motorists than Old Kings Road if the CSXT or Norfolk Southern

5508crossings on Old Kings Road are blocked by train traffic.

551872. It is undisputed that a substantial volume of rail

5528traffic utilizes the CSXT tracts at Old Kings Road. However,

5538the trains in the Moncrief Yard are no longer than they were in

5551the 1960s. In fact, there are probably 500 less train cars in

5563the yard and traveling across the Crossing than there were back

5574then.

557573. CSXT's business operation will not changed or be

5584affecte d regardless of whether the Crossing is open or closed.

5595CSXT has no business necessity to have the Crossing closed,

5605apart from its dangerousness.

560974. It is true that the closing of the Crossing will

5620result in some inconvenience to three residential home s and two

5631businesses, Tremron and RLI, located within the triangle formed

5640by the Norfolk Southern mainline, Old Kings Road and St. Claire

5651Street. However, the triangle existed before these homes were

5660constructed and before the businesses were established. Anyone

5668locating a home or business in the triangle area between two

5679railroad yards and two railroad tracks knew or should have known

5690that train blockages were going to be a problem.

569975. Prior to the closing of the Crossing, the homeowners

5709in the triang le used St. Clair Street as their primary access

5721route. They used the Crossing mainly when the St. Clair Street

5732crossing was blocked.

573576. Tremron purchased its St. Clair Street business

5743premises in June 2000, after the Crossing had been closed for

5754almos t two years. Prior to the purchase of the business

5765premises, Tremron represented to the Jacksonville Economic

5772Development Commission that it had performed an initial

5780feasibility study and concluded that the current roadways and

5789public utilities were adequ ate to meet the demands for the new

5801facility.

580277. Tremron, which manufactures cement pavers, has 10 to

581140 trucks entering and leaving the company's premises in a day.

5822If the Crossing were open and not blocked by trains, the best

5834access to I - 95 for Tremr on's trucks would be through the

5847Crossing. Additionally, because the Crossing is closed,

5854Tremron's employees have problems with access to and from work

5864when the triangle is sealed.

586978. Tremron performed surveys of train traffic at the

5878Norfolk Southern S t. Clair Street and 20th Street West crossings

5889in October and November 2000, and the Crossing in July 2001.

5900The surveys measured the maximum amount of time the St. Clair

5911Street crossing was blocked by train traffic and not actual

5921vehicle delays at the cro ssing.

592779. A COJ study recorded actual vehicle delays using a

5937proper methodology at ten crossings in the area of Old Kings

5948Road. However, this study did not include a survey of vehicle

5959delays at the Norfolk Southern St. Clair Street crossing.

596880. CSXT studied train blockages at the Norfolk Southern

5977St. Clair Street crossing on June 13 and 14, 2001. The results

5989of the CSXT surveys provide persuasive evidence that no

5998significant train delays exist at St. Claire Street.

600681. After the date of the Tremro n train delay studies at

6018the St. Clair Street crossing, Tremron’s President, Hugh Caron,

6027reached a cooperative arrangement with Norfolk Southern whereby

6035the railroad agreed to reduce train blockages at St. Clair

6045Street. Mr. Caron and local triangle reside nts, Thomas Miller,

6055Milton Holland and Rebecca Jenkins, testified that the

6063cooperative arrangement was working in a satisfactory manner at

6072the time of the final hearing.

607882. If the Crossing was open, Tremron and RLI trucks might

6089be able to look down Old Kings Road to see if a train was

6103blocking the Crossing before heading in that direction. But if

6113a train blocks the tracks as the trucks approach the Crossing,

6124they cannot turn around.

612883. In the event of a train blockage, RLI's trucks can use

6140an alterna te route through the Norfolk Southern Simpson Yard to

6151circumvent the blocked crossing on an emergency basis.

6159Additionally, Milton Holland, one of the three homeowners who

6168reside in the triangle area, also uses the alternate route

6178through the Norfolk South ern Simpson Yard to circumvent the

6188Crossing when it is blocked.

619384. RLI is a trucking business that transports building

6202material. It ships and receives material such as steel coils

6212and plywood to and from the Norfolk Southern boxcars. It also

6223transport s metal containers to and from the two major

6233Jacksonville seaports. RLI's facility on Old Kings Road serves

6242as a warehouse for these shipments.

624885. RLI's tractor - trailers make 16 to 20 round trips a day

6261from the warehouse to the seaports. Prior to July 1998, the

6272tractor - trailers regularly used the Crossing when it was not

6283blocked by train traffic. Even so, the RLI trucks and personnel

6294were trapped within the triangle every now and then. With the

6305closing of the Crossing, RLI's employees and trucks are trapped

6315within the triangle on a more regular basis.

632386. RLI has not missed any shipments since the closure of

6334the Crossing. Mr. Carter testified that, at this point in time,

6345it did not make a difference to him whether the Old Kings Road

6358Crossing remained closed.

636187. Centurion’s President, Harold Shafer, testified that

6368none of his four automobile transport businesses, including

6376Centurion, were impacted by the closure of the Crossing.

6385According to Mr. Shafer, he owns a business in the triangle area

6397known as Vehicle Transport, Inc., which builds racking systems

6406for transporting automobiles in containers.

641188. Vehicle Transport, Inc., was not operating and had no

6421employees at the time of the final hearing. Mr. Shafer is

6432planning to reopen Vehicle Transpor t, Inc., contingent upon the

6442business being a successful bidder on several contracts. In

6451that event, Vehicle Transport, Inc., would employ 25 to 30

6461employees at the St. Clair facility.

646789. If Vehicle Transport, Inc., were to reopen for

6476business on St. C laire Street with the Crossing closed, the

6487company would suffer a loss in labor efficiency. However, Mr.

6497Shafer's primary concern would be the occasional unavailability

6505of emergency fire and rescue service, not access for his

6515business resulting from the c losing of the Crossing.

652490. Petitioners' expert witness, Geoff Pappas, presented

6531evidence of an economic impacts study, concluding that the

6540businesses located within the triangle had suffered economic

6548losses due to the Crossing's closure. Rather than e xamining the

6559business records of these companies, Mr. Pappas based his

6568analysis on estimated projected losses due to the cost of

6578additional motor fuel consumed by commercial trucks accessing

6586the businesses via the alternate route and due to the cost of

6598pay ing employees for lost time spent waiting at one of the

6610Norfolk Southern crossings.

661391. Mr. Pappas opined that RLI's fuel expense has

6622increased by $3,000 per year since the closing of the Crossing.

6634He concluded that the company has experienced over $55, 200 per

6645year in lost labor because of the time the employees spend

6656waiting on trains to clear the tracks. According to Mr. Papas,

6667other trucking companies making deliveries to RLI's facility

6675have also incurred significant financial losses.

668192. As to Tre mron, Mr. Pappas testified that the company

6692loses approximately $42,000 per year in labor efficiency because

6702the employees spend so much time waiting for the tracks to clear

6714within the triangleemron pays outside truck drivers to

6722deliver its products b y the truckload; therefore, Mr. Pappas

6732asserted that firms delivering to Tremron have incurred

6740approximately $13,450 in additional fuel expenditures per year

6749because the Crossing is closed. Mr. Pappas calculated these

6758economic losses for Tremron beginning in 1998 even though

6767Tremron did not open its business facility until 2000.

677693. In support for his projected fuel consumption cost

6785analysis, Mr. Pappas assumed that each and every truck would

6795have accessed the triangle area via the Crossing if it had bee n

6808open. Mr. Pappas also assumed that each and every truck used

6819the alternate route because of the Crossing's closure.

682794. On cross - examination, Mr. Pappas had to concede the

6838following: (a) Any truck going to or coming from Interstate 10,

6849Interstate 295 , or going to northbound Interstate 95 would

6858access the triangle area using a crossing other than the one at

6870issue here; (b) An origin and destination study needs to be

6881conducted to accurately determine the percentage of commercial

6889traffic actually utilizi ng the alternate route; (c) If an origin

6900and destination study had been conducted, it would have shown

6910that the trucks would have used the Norfolk Southern crossing at

6921least some of the time; and (d) The analysis did not consider

6933the impact of regular bloc kages at the Crossing. Mr. Pappas

6944admitted that his analysis was "a last minute review" that could

6955have been "much more accurate."

696095. In support of his lost wages cost analysis, Mr. Papas

6971estimated that every employee of each business would make four

6981tri ps into or out of the triangle area every working day of the

6995year. He estimated that each and every trip would incur a

700615 - minute delay due to train blockages on the Norfolk Southern

7018line. Thus, Mr. Pappas concluded that each and every employee

7028was es timated to lose one hour every working day. By

7039multiplying the estimated number of employees of each business

7048by the estimated average hourly wage paid by that business, then

7059doubling that amount to account for "indirect wage losses,"

7068Mr. Pappas estimat ed the dollar amount of wages lost daily by

7080each business. By multiplying that product by the number of

7090working days in a year, Mr. Pappas estimated the annual loss to

7102each business.

710496. Mr. Pappas's lost wages cost analysis assumed that

7113each and every trip into or out of the triangle area would have

7126been made via the Crossing had it been open. He further assumed

7138that each business paid their employees for the time they spent

7149waiting at a rail crossing coming to or leaving work.

715997. On cross - examinati on, Mr. Pappas conceded the

7169following: (a) Employees would not be paid for time spent

7179waiting at a crossing after leaving work; (b) Employees might

7189not leave work for lunch; and (c) Such trips would have to be

7202deducted from the analysis.

720698. There is no doubt that RLI and Tremron have incurred

7217an adverse financial impact due to the closure of the Crossing.

7228However, for the reasons set forth above, Mr. Pappas's cost

7238analysis studies and his testimony in support thereof, cannot be

7248relied upon to accuratel y reflect that impact.

7256G. Pedestrian Convenience

725999. It is undisputed that the Crossing was not designed

7269for pedestrian or bicycle use. Nevertheless, persuasive

7276evidence indicates that pedestrians and bicyclists used the

7284Crossing before it was closed. They have continued to cross the

7295tracks since CSXT removed the crossing roadway in July 1998.

7305100. One survey indicates that as many as six pedestrians

7315used the Crossing during a 24 - hour period in 2001. Other

7327evidence indicates that at least 15 pedest rians used the

7337Crossing during an eight - hour period in 2001. These pedestrians

7348include a lot of Grand Park community residents who do not own

7360motor vehicles and therefore need to walk or rely on other means

7372of transportation.

7374101. It would take over an hour for a brisk walker to walk

7387the proposed alternate route around the Crossing, a distance of

73973.26 miles. The alternate route is also dangerous for

7406pedestrians because both Edgewood Avenue and New Kings Road

7415(U.S. 1/23) are four - lane highways with no s idewalks.

7426Additionally, the overpass on Edgewood Avenue has cement

7434barriers that block off and reduce the size of the sidewalks so

7446that they are impassible. Thus a pedestrian must walk right

7456next to the auto lanes on the viaduct.

7464102. Public bus servi ce provided by the Jacksonville

7473Transportation Authority (JTA) connects the neighborhoods on

7480both sides of the Crossing. Some time shortly before the final

7491hearing, a CSXT witness followed two buses that connect the

7501Paxon community and the Grand Park comm unity on the eastern side

7513of the Edgewood Avenue overpass. Additionally, CSXT and COJ

7522provided exhibits which clearly show that pedestrians on both

7531sides of the Crossing have reasonable access to bus

7540transportation over the alternate route, on weekdays an d

7549weekends, without having to walk an unreasonable distance.

7557103. The pedestrian safety hazards at the Crossing

7565substantially outweigh any limited pedestrian inconvenience that

7572would result from the closing of the Crossing.

7580H. Excessive Restriction to Emergency Type Vehicles

7587Resulting from Closing

7590104. The Jacksonville Fire and Rescue Department naturally

7598has some concerns that it will be unable to provide timely

7609emergency services in the triangle area when it is sealed. This

7620is more likely to hap pen with the Crossing closed.

7630105. Old Kings Road has always been an area of limited

7641access for fire and rescue crews due to the amount of train

7653blockages at the Crossing. The response time of fire and rescue

7664services could be reduced by one minute if the Crossing were

7675open and not blocked by a train. One minute can mean the

7687difference between life and death in an emergency situation.

7696106. Prior to its closing, emergency vehicles were

7704dispatched from the east side of the Crossing (from fire and

7715resc ue Station 7) to cover emergency calls on the west side of

7728the Crossing. Since the closure of the Crossing, the

7737Jacksonville Fire and Rescue Department has modified its

7745response procedures to handle fire and rescue calls for the west

7756side of the Crossing by placing a new fire and rescue station

7768(Station 17) located on Huron Street, west of and less than two

7780miles from the Crossing. Huron Street connects with St. Claire

7790Street south of the Norfolk Southern crossing.

7797107. Stations 7 and 17 cannot maximiz e their potential by

7808providing overlapping fire and rescue services because of the

7817closure of the Crossing. Instead, the two stations serve as

7827backup units for each other.

7832108. The change in fire and rescue response procedures was

7842required in part due to the closure of the Crossing. It also

7854was necessary to meet increasing demand for service on the west

7865side of the Crossing and to ensure emergency service when there

7876were simultaneous multiple calls.

7880109. RLI and Tremron also are concerned that emerg ency

7890services will not arrive timely if the Crossing is closed and

7901the triangle area is sealed. RLI has 16 to 18 employees. In

7913August 2001, a Norfolk Southern train was blocking 20th Street

7923West and St. Clair Street when one of RLI's employees required

7934e mergency medical services. Norfolk Southern had to break the

7944train so that rescue services could answer the emergency call.

7954The rescue response time on that occasion was 12 minutes.

7964emron has 12 employees. Sometime in 2001, Tremron

7972had to call for emergency medical help for an employee who was

7984experiencing an asthma panic attack. The emergency response

7992vehicle took 30 minutes to respond to Tremron's facility. The

8002record does not indicate whether a train sealed the triangle

8012area at that time.

8016111. Despite the above - referenced incidents, the average

8025response times for the three fire and rescue zones in the area

8037of the Crossing have significantly improved since its closure in

80471998. For example, fire and rescue Zone 5370 includes the

8057triangle area. The average response time for fire response in

8067Zone 5370 was 6.1 minutes in 1997 and 4.7 minutes in 1999 and

80802000. The average response time for emergency medical response

8089in Zone 5370 was 8.6 minutes in 1997, 5.7 minutes in 1999, and

81026.2 minutes i n 2000. The Jacksonville Fire and Rescue

8112Department considers six minutes to be the optimum response time

8122for emergency medical response.

8126112. Regardless of the closing of the Crossing, there may

8136be times when fire and rescue vehicles need to request t hat a

8149train be broken in order to access the triangle area. While

8160fire and rescue personnel prefer that the Crossing be open, any

8171restriction to fire and rescue vehicles as a result of the

8182closure of the Crossing has not been and will not be excessive.

8194113. The Jacksonville Sheriff’s Office has good

8201overlapping vehicle coverage on both sides of the Crossing.

8210There was no evidence presented that police calls have been or

8221would be delayed as the result of the closing of the Crossing.

8233There is evidence t hat the police do not patrol along Old Kings

8246Road as often as they did before the Crossing was closed.

8257Nevertheless, any restrictions to police patrol vehicles as a

8266result of the closure of the Crossing have not been excessive.

8277I. Effect of Closing on Rail Operations And Expenses

8286114. Although CSXT has no business necessity to keep the

8296Crossing closed, crossing accidents impact the railroad's

8303operations. This occurs when train crews are relieved from duty

8313and lose time from work dealing with the em otional effects or

8325psychological trauma caused by witnessing serious accidents.

8332Additionally, CSXT has significant liability exposure for

8339crossing accidents at the Crossing, including physical and

8347emotional injury claims brought by motorists, passengers, train

8355crews and pedestrians based upon the proximity of the Crossing

8365to the Moncrief Yard. So far, CSXT has paid approximately

8375$500,000 for claims arising out of accidents at the Old Kings

8387Road crossing, exclusive of attorney’s fees and costs. Amtrak

8396has paid approximately $100,000.

8401CONCLUSIONS OF LAW

8404115. The Division of Administrative Hearings has

8411jurisdiction over the parties and subject matter of this cause,

8421pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

8429116. CSXT has the burden o f proving by a preponderance of

8441the evidence that the Crossing should be closed. Department of

8451Transportation v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA

84631981).

8464117. FDOT substantially complied with its procedure in

8472issuing its Notice of Intent to I ssue Permit. CSXT filed the

8484application for closure in the Spring of 1997. COJ informally

8494learned about the pending application in the Fall of 1998. FDOT

8505issued the formal Notice of Intent to Issue Permit on

8515January 31, 2001. Any deficiency on the part of FDOT in

8526providing notice to COJ was harmless.

8532118. FDOT exercises regulatory authority over all public

8540railroad - highway crossings in the State of Florida pursuant to

8551Section 335.141, Florida Statutes. City of Plant City v.

8560Department of Transpo rtation , 399 So. 2d 1075 (Fla. 2d DCA

85711981).

8572119. To carry out its responsibility, FDOT has promulgated

8581Rules 14 - 46.003(1) and 14 - 46.003(2), Florida Administrative

8591Code, which provide as follows, in pertinent part:

8599(1) Purpose . To provide rules for th e

8608Florida Department of Transportation,

8612pursuant to Section 335.141, Florida

8617Statutes, for the establishment of uniform

8623standards in the issuance of final orders of

8631the department regarding permits for the

8637opening and closing of public railroad -

8644highway g rade crossings. The two basic

8651objectives of these uniform standards will

8657be to:

8659(a) Reduce the accident frequency and

8665severity of grade crossings, and

8670(b) Improve rail and motor vehicle

8676operating efficiency.

8678(2) Opening and Closing Public Grad e

8685Crossings . The Department of Transportation

8691may accept applications for the opening and

8698closing of public railroad crossings from

8704the governmental body that has jurisdiction

8710over the public street or highway; any

8717railroad operating trains through the

8722cr ossing; any other applicant for a public

8730grade crossing provided there is in

8736existence an agreement between the applicant

8742and governmental body to assume jurisdiction

8748as a public crossing; or the Department,

8755itself, on behalf of the State of Florida.

8763Open ing or closing of public grade crossings

8771shall take the form of a Final Order by the

8781Secretary of Transportation, either

8785subsequent to administrative hearings

8789conducted pursuant to Chapter 120, Florida

8795Statutes, or based upon a voluntary

8801Stipulation of Par ties executed by all

8808parties, including the Department.

8812Acceptance of any application for processing

8818by the Department shall not be construed as

8826indicating the Department's position

8830regarding the application.

8833120. FDOT has established criteria for determining whether

8841to issue a permit to close a crossing. Rule 14 - 46.003(3)(b),

8853Florida Administrative Code, states as follows:

8859(b) Closing Public Grade Crossings. In

8865considering the closing of a public grade

8872crossing, the following criteria will a pply:

88791. Necessity, convenience and safety

8884effects upon rail and vehicle traffic.

88902. Utilization of remaining routes where

8896practical.

88973. Effect of closing on rail operations

8904and expenses.

89064. Excessive restriction to emergency

8911type vehicles resu lting from closing.

8917121. In determining whether to approve CSXT's application,

8925FDOT considered the following: (a) the necessity, convenience

8933and safety of the Crossing to rail and vehicle traffic; (b)

8944whether other alternate routes may be utilized; (c) the effect

8954of closing the Crossing on rail operations and expenses; and (d)

8965whether excessive restrictions to emergency type vehicles will

8973result from the closure of the Crossing.

8980122. Although reasonable people may disagree over the

8988precise details of F DOT’s diagnostic review, it is beyond

8998dispute that FDOT substantially complied with its own

9006procedures, and any omissions, have been cured by consideration

9015of those elements in the course of the formal hearing.

9025123. The evidence in this case proved that t he Crossing

9036has significant safety hazards, including but not limited to:

9045a. The highest number of railroad crossing accidents

9053in Jacksonville, Florida, including several

9058involving serious personal injury;

9062b. Motorists running the gates because of extend ed

9071train blockages and a general lack of appreciation

9079of the nature of switching movements;

9085c. Potential danger of obstructed trains traveling at

9093high speeds on the CSXT mainline;

9099d. Visibility obstructions for motorists who cannot

9106observe fast - moving fr eight or Amtrak passenger

9115trains on the mainline;

9119e. Approximately one hundred train movements daily;

9126f. Five railroad tracks that cross the road at a

9136skewed angle;

9138g. Motorist frustration over extended train delays;

9145h. The proximity of the Crossing t o the Moncrief Yard

9156switching activities;

9158i. Trains performing different activities on different

9165railroad tracks at varying speeds;

9170j. Pedestrians climbing between freight cars on a

9178regular basis due to extended train delays; and

9186k. A substantial likel ihood of future railroad

9194crossing accidents.

9196124. Closing the Crossing would enhance its safety. The

9205benefit of the enhanced safety outweighs any possible

9213inconvenience to motorist and pedestrians that may result from

9222closure.

9223125. The evidence demon strated there is an existing

9232reliable, alternate route for vehicle traffic over New Kings

9241Road and Edgewood Avenue. The alternate route eliminates the

9250substantial train delays and safety hazards that exist at the

9260Crossing and the Norfolk Southern crossing s. The alternate

9269route is practical given its minimal additional distance and

9278time requirements. Public buses provide pedestrians with

9285reasonable transportation to both sides of the Crossing over the

9295alternate route.

9297126. The evidence demonstrate d that closure of the

9306Crossing might cause some occasional inconvenience to

9313individuals located in the triangle areaains will block

9321this area more often if the Crossing is closed. However, the

9332additional inconvenience is not significant when balanced

9339against the problems of substantial train delays at the Crossing

9349and the overwhelming public safety benefits associated with

9357eliminating the crossing.

9360127. Closure of the crossing may increase the cost of

9370doing business for companies located in the tri angle. The

9380record does not accurately reflect the financial impact on these

9390companies.

9391128. CSXT does not have a business necessity to close the

9402Crossing. On the other hand, closure of the Crossing would have

9413a beneficial effect on rail operations and expenses based upon

9423the railroad’s potential liability exposure for accidents. This

9431exposure is especially significant based on the regular presence

9440of motorists and pedestrians crossing around lowered gates in

9449front of trains or between freight cars.

945612 9. Finally, the evidence proved that the closure of the

9467Old Kings Road crossing would not cause an "excessive"

9476restriction to emergency type vehicles. To the contrary,

9484response times for emergency vehicles have improved since the

9493closure in 1998.

9496130. In tacit recognition of the safety hazards that exist

9506at the Crossing, Petitioners argued that FDOT should consider

9515upgrades to the traffic control devices as an alternative to

9525closure. Under Rule 14 - 46.003, Florida Administrative Code,

9534FDOT is not requi red to consider the relative merits of

9545allocating funds to upgrade the traffic control devices at a

9555railroad crossing as part of its crossing closure determination.

9564131. FDOT would not consider upgrades to the traffic

9573control devices based upon the exis tence of signal lights and

9584gates at the Crossing. Moreover, installation of a

9592four - quadrant gate system would enhance the danger at the

9603Crossing because vehicles could be trapped in the path of a

9614train.

9615132. In this case, Respondents have shown that the closing

9625of the Crossing effectuates FDOT’s policy of improved safety at

9635railroad crossings by eliminating, where reasonably convenient,

9642the interaction of motor vehicle traffic with rail traffic.

9651RECOMMENDATION

9652Based upon the foregoing Finding s of Fact and Conclusions

9662of Law, it is

9666RECOMMENDED:

9667That FDOT enter a final order granting CSXT a permit to

9678close the Crossing.

9681DONE AND ENTERED this 11th day of February, 2002, in

9691Tallahassee, Leon County, Florida.

9695__________________________________ _

9697SUZANNE F. HOOD

9700Administrative Law Judge

9703Division of Administrative Hearings

9707The DeSoto Building

97101230 Apalachee Parkway

9713Tallahassee, Florida 32399 - 3060

9718(850) 488 - 9675 SUNCOM 278 - 9675

9726Fax Filing (850) 921 - 6847

9732www.doah.state.fl.us

9733Filed with the Clerk of the

9739Division of Administrative Hearings

9743this 11th day of February, 2002.

9749COPIES FURNISHED :

9752William Graessle, Esquire

9755Winegeart & Graessle, P.A.

9759219 North Newman Street

9763Fourth Floor

9765Jacksonville, Florida 32202 - 3222

9770Eric L. Leach, Esquire

9774Milton, Le ach, D'Andrea & Ritter, P.A.

9781815 Main Street, Suite 200

9786Jacksonville, Florida 32207

9789Scott A. Matthews, Esquire

9793Department of Transportation

9796605 Suwannee Street

9799Mail Station 58

9802Tallahassee, Florida 32399 - 0450

9807Ernst D. Mueller, Esquire

9811City of Jacksonvil le

9815Office of the General Counsel

9820117 West Duval Street, Suite 480

9826Jacksonville, Florida 32202

9829Harold A. Shafer

9832Centurion Auto Transport

98355912 New Kings Road

9839Jacksonville, Florida 32209

9842James C. Myers, Clerk of Agency Proceedings

9849Department of Transporta tion

9853605 Suwannee Street

9856Haydon Burns Building, Mail Station 58

9862Tallahassee, Florida 32399 - 0450

9867Pamela Leslie, General Counsel

9871Department of Transportation

9874605 Suwannee Street

9877Haydon Burns Building, Mail Station 58

9883Tallahassee, Florida 32399 - 0450

9888NOTIC E OF RIGHT TO SUBMIT EXCEPTIONS

9895All parties have the right to submit written exceptions within

990515 days from the date of this Recommended Order. Any exceptions

9916to this Recommended Order should be filed with the agency that

9927will issue the final order in th is case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/25/2002
Proceedings: Agency Final Order
PDF:
Date: 04/25/2002
Proceedings: Final Order filed.
PDF:
Date: 02/11/2002
Proceedings: Recommended Order
PDF:
Date: 02/11/2002
Proceedings: Recommended Order issued (hearing held August 13 through 16, 2001) CASE CLOSED.
PDF:
Date: 02/11/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 12/03/2001
Proceedings: City of Jacksonville Proposed Recommended Order filed.
PDF:
Date: 11/30/2001
Proceedings: Proposed Recommended Order of Tremron Jacksonville, L.L.C filed.
PDF:
Date: 11/30/2001
Proceedings: Respondent, CSX Transportation, Inc.`s Proposed Recommended Order filed.
PDF:
Date: 11/30/2001
Proceedings: Department of Transportation`s Proposed Recommended Order (filed via fascimile).
PDF:
Date: 11/26/2001
Proceedings: Order Granting Enlargement of Time issued.
PDF:
Date: 11/21/2001
Proceedings: Unopposed Motion for Enlargement of Time to Serve Proposed Final Orders (filed by Tremron Jacksonville via facsimile).
PDF:
Date: 09/21/2001
Proceedings: Order Granting Enlargement of Time issued.
PDF:
Date: 09/21/2001
Proceedings: Joint Consent Motion for Enlargement of Time Within Which to File Proposed Recommended Orders (filed via facsimile).
PDF:
Date: 09/11/2001
Proceedings: Deposition, D. Pappas filed, Condensed Transcript, Word Index.
PDF:
Date: 09/11/2001
Proceedings: Deposition, G. Pappas filed.
Date: 09/11/2001
Proceedings: Transcript filed, Cumulative Word Index of Volumes I through IV.
Date: 09/11/2001
Proceedings: Transcript filed, Condensed Transcripts of Volumes I through IV.
PDF:
Date: 09/11/2001
Proceedings: Notice of Filing filed.
Date: 09/11/2001
Proceedings: Transcript filed, Volumes I through IV.
PDF:
Date: 08/27/2001
Proceedings: Respondent, CSX Transportation, Inc.`s Notice of Taking Deposition of Geoff Pappas filed.
PDF:
Date: 08/22/2001
Proceedings: Petitioner, City of Jacksonville`s Notice of Taking Deposition of Geoff Pappas (filed via facsimile).
PDF:
Date: 08/20/2001
Proceedings: Order issued (petitioner Tremron`s Exhibit No. 3 (deposition of D. Albritton) is hereby admitted over objection).
PDF:
Date: 08/20/2001
Proceedings: Amended Order issued.
Date: 08/13/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 08/13/2001
Proceedings: Petitioner`s Exhibit Tremron-1 filed.
PDF:
Date: 08/10/2001
Proceedings: Respondent, CSX Transportation, Inc.`s Supplemental Motion in Limine (filed via facsimile).
PDF:
Date: 08/10/2001
Proceedings: Report of Geoff Pappas on Economic Impact of the closing of the Crossing (filed by City of Jacksonville via facsimile).
PDF:
Date: 08/10/2001
Proceedings: Respondent, CSX Transportation, Inc.`s Response to Plaintiff`s Motion to Exclude Witnesses (filed via facsimile).
PDF:
Date: 08/10/2001
Proceedings: Petitioner, City of Jacksonville submission of Exhibit "A" to Pre-Hearing Stipulation, Petitioner, City of Jacksonville Exhibit List Exhibit "A" (filed via facsimile).
PDF:
Date: 08/10/2001
Proceedings: Petitioner, City of Jacksonville`s Response to CSX Transportation, Inc`s Motion to Compel; Motion for in Camera Inspection and/or Motion to Strike Witness, Toufic Khayat (filed via facsimile).
PDF:
Date: 08/10/2001
Proceedings: Motion to Exclude Witnesses Not Identified in Discovery Proceedings (filed by E. Mueller via facsimile).
Date: 08/10/2001
Proceedings: Letter to Judge Hood from E. Mueller regarding hearing rooms (filed via facsimile).
PDF:
Date: 08/09/2001
Proceedings: Petitioner, City of Jacksonville Submission of Exhibit "A" to Pre-Hearing Stipulation, Petitioner, City of Jacksonville Exhibit List Exhibit "A" (filed via facsimile).
PDF:
Date: 08/09/2001
Proceedings: Petitioner, City of Jacksonville Submission of Supplemental Exhibit "F" to Pre-Hearing Stipulation. Petitioner, City of Jacksonville Supplemental Witness List Exhibit F (filed via facsimile).
PDF:
Date: 08/09/2001
Proceedings: Letter to Judge Hood from W. Graessle regarding concerns regarding hearing held on August 8, 2001 (filed via facsimile).
PDF:
Date: 08/07/2001
Proceedings: Letter to Judge Hood from T. E. Leach enclosing depositions of Mr. Khayat and Mr. Ball (filed via facsimile).
PDF:
Date: 08/07/2001
Proceedings: Deposition (of T. Khayyat) filed.
PDF:
Date: 08/07/2001
Proceedings: Pre-Hearing Stipulation filed by E. Mueller, B. Conroy, H. Schafer, W. Graessle, E. Leach
PDF:
Date: 08/07/2001
Proceedings: Petitioner, City of Jacksonville`s Response to Respondent, CSX Transportation, Inc`s Motion in Limine (filed via facsimile).
PDF:
Date: 08/06/2001
Proceedings: Petitioner, City of Jacksonville`s Response to CSX Transportation, Inc`s Motion to Take Witness Out-of-Turn (filed via facsimile).
PDF:
Date: 08/01/2001
Proceedings: Respondent, CSX Transportation, Inc`s Motion to Compel; Motion for in Camera Inspection and/or Motion to Strike Witness, Toufic Khayat (filed via facsimile).
PDF:
Date: 08/01/2001
Proceedings: Respondent, CSX Transportation, Inc`s Motion to Take Witness Out-of-Turn (filed via facsimile).
PDF:
Date: 08/01/2001
Proceedings: Respondent, CSX Transporation, Inc`s Motion in Limine (filed via facsimile).
PDF:
Date: 08/01/2001
Proceedings: Respondent, CSX Transportation, Inc`s Motion for Judge View (filed via facsimile).
PDF:
Date: 07/24/2001
Proceedings: Petitioner, City of Jacksonville`s Fifth Supplemental Answer to Department`s First Set of Interrogatories (filed via facsimile).
PDF:
Date: 07/12/2001
Proceedings: Petitioner, City of Jacksonville`s Fourth Supplemental Answer to Department`s First Set of Interrogatories (filed via facsimile).
PDF:
Date: 07/09/2001
Proceedings: Petitioner, City of Jacksonville`s Response to Department of Transportation`s and CSX Transportation, Inc.`s Motions for View (filed via facsimile).
PDF:
Date: 07/06/2001
Proceedings: Notice of Taking Depositions Ad Testificandum (19 deponents) filed via facsimile.
PDF:
Date: 07/03/2001
Proceedings: Petitioner`s Fifth Request for Production of Documents to CSX Transportation, Inc. (filed via facsimile).
PDF:
Date: 06/29/2001
Proceedings: Petitioner, City of Jacksonville Production of Documents (filed via facsimile).
PDF:
Date: 06/29/2001
Proceedings: Petitioner, City of Jacksonville`s Third Supplemental Answer to Department`s First Set of Interrogatories (filed via facsimile).
PDF:
Date: 06/27/2001
Proceedings: Petitioner`s Second Request for Production of Documents to Department of Transportation filed.
PDF:
Date: 06/27/2001
Proceedings: Respondent, Department of Transportation`s, Notice of Answering Tremron Jacksonville, L.C.C.`s First Set of Interrogatories filed.
PDF:
Date: 06/27/2001
Proceedings: Defendant`s Amended Notice of Taking Deposition (L. Porter) filed.
PDF:
Date: 06/27/2001
Proceedings: Defendant`s Amended Notice of Taking Deposition (S. Allbritton) filed.
PDF:
Date: 06/27/2001
Proceedings: Defendant`s Amended Notice of Taking Deposition (D. Halpin) filed.
PDF:
Date: 06/27/2001
Proceedings: Defendant`s Amended Notice of Taking Deposition (B. Pemberton) filed.
Date: 06/27/2001
Proceedings: Petitioner`s First Request for Production of Documents to Department of Transportation filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner`s Fourth Request for Production of Documents to CSX Transportation, Inc. filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner, City of Jacksonville`s, Notice of Answering Department`s First Set of Interrogatories filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner, City of Jacksonville`s Response to Department`s First Request for Production filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner`s Third Request for Production of Documents to CSX Transportation, Inc. filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner`s Second Request for Production of Documents to CSX Transportation, Inc. filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner`s First Request for Admissions to Respondent, Department of Transportation filed.
PDF:
Date: 06/27/2001
Proceedings: Petitioner`s First Request for Admissions to Respondent, CSX Transportation, Inc. filed.
PDF:
Date: 06/27/2001
Proceedings: Notice of Serving City of Jacksonville`s Supplemental Interrogatory to Department of Transportation filed.
PDF:
Date: 06/27/2001
Proceedings: Defendant`s Notice of Taking Deposition (B. Pemberton) filed.
PDF:
Date: 06/27/2001
Proceedings: Defendant`s Notice of Taking Deposition (M. Tolbert) filed.
PDF:
Date: 06/27/2001
Proceedings: Defandant`s Notice of Taking Deposition (L. Porter) filed.
PDF:
Date: 06/25/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for August 13 through 16, 2001; 10:00 a.m.; Jacksonville, FL).
PDF:
Date: 06/21/2001
Proceedings: Joint Motion for Continuance (filed via facsimile).
PDF:
Date: 06/21/2001
Proceedings: Respondent, Department of Transportation`s, Notice of Answering City of Jacksonville`s First Set of Interrogatories (filed via facsimile).
PDF:
Date: 06/20/2001
Proceedings: Respondent, Department of Transportation`s, Motion for View filed.
PDF:
Date: 06/13/2001
Proceedings: Department`s Response to City of Jacksonville`s First Request for Admissions filed.
PDF:
Date: 06/07/2001
Proceedings: Motion for Protective Order (filed by Respondent via facsimile).
PDF:
Date: 06/05/2001
Proceedings: Petitioner, Department of Transportation`s Notice of Answering City of Jacksonville`s First Set of Interrogatories filed.
PDF:
Date: 05/17/2001
Proceedings: Petitioner`s Request for Production to Department of Transportation filed.
PDF:
Date: 05/17/2001
Proceedings: Petitioner`s Request for Production to CSX Transportation, Inc. filed.
PDF:
Date: 05/17/2001
Proceedings: Notice of Serving First of Interrogatories to Respondent, CSX Transportation, Inc. filed.
PDF:
Date: 05/17/2001
Proceedings: Notice of Serving First of Interrogatories to Respondent, Department of Transportation filed.
PDF:
Date: 05/07/2001
Proceedings: Letter to Judge Hood from E. Mueller (request for subpoenas) filed.
PDF:
Date: 04/30/2001
Proceedings: Petitioner`s First Request for Production of Documents to Department of Transportation filed.
PDF:
Date: 04/30/2001
Proceedings: Petitioner`s First Request for Production of Documents to CSX Transportation, Inc. filed.
PDF:
Date: 04/30/2001
Proceedings: Notice of Serving City of Jacksonville`s First Set of Interrogatories to Department of Transportation, Inc. filed.
PDF:
Date: 04/30/2001
Proceedings: Notice of Serving City of Jacksonville`s First Set of Interrogatories to CSX Transportation, Inc. filed.
PDF:
Date: 04/30/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for July 10 through 13, 2001; 10:00 a.m.; Jacksonville, FL).
PDF:
Date: 04/20/2001
Proceedings: Department`s First Request for Production of Documents to City of Jacksonville filed.
PDF:
Date: 04/20/2001
Proceedings: Department`s First Request for Production of Documents to Tremron Jacksonville, L.L.C. filed.
Date: 04/20/2001
Proceedings: Notice of Serving Department`s for Production of Documents to City of Jacksonville filed.
PDF:
Date: 04/20/2001
Proceedings: Notice of Serving Department`s First Set of Interrogatories to City of Jacksonville filed.
Date: 04/20/2001
Proceedings: Notice of Serving Department`s Production of Documents to Tremron Jacksonville, L.L.C. filed.
PDF:
Date: 04/20/2001
Proceedings: Notice of Serving Department`s First Set of Interrogatories to Tremon Jacksonville, L.L.C. filed.
PDF:
Date: 04/20/2001
Proceedings: Department`s First Request for Production of Documents to Centurion Auto Transport filed.
PDF:
Date: 04/20/2001
Proceedings: Notice of Serving Department`s First Set of Interrogatories to Centurion Auto Transport filed.
PDF:
Date: 04/10/2001
Proceedings: Department`s Notice of Receipt of Supplemental Responses to Initial Order filed.
PDF:
Date: 04/09/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 04/09/2001
Proceedings: Notice of Hearing issued (hearing set for May 31 and June 1, 2001; 10:00 a.m.; Jacksonville, FL).
PDF:
Date: 04/05/2001
Proceedings: Order of Consolidation issued. (consolidated cases are: 01-001157, 01-001158, 01-001159)
PDF:
Date: 04/02/2001
Proceedings: Response to Initial Order filed by Responsent, Department. of Transportation.
PDF:
Date: 03/26/2001
Proceedings: Initial Order issued.
PDF:
Date: 03/23/2001
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 03/23/2001
Proceedings: Intent to Issue a Permit to Close a Railroad Crossing filed.
PDF:
Date: 03/23/2001
Proceedings: Agency referral filed.

Case Information

Judge:
SUZANNE F. HOOD
Date Filed:
03/23/2001
Date Assignment:
03/26/2001
Last Docket Entry:
04/25/2002
Location:
Jacksonville, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (3):