04-004577 City Of Jacksonville vs. Department Of Transportation Status: Closed Recommended Order on Friday, August 5, 2005.

Summary: Respondent has met its burden and may issue a final order closing Crossing No. 271815X in Jacksonville, Florida.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF JACKSONVILLE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4577

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

KEVIN MCLAUGHLIN AND FLORIDA )

EAST COAST RAILWAY, L.L.C . , )

)

Intervenor s . )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) conducted a formal administrative

hearing in the above - styled matter on June 14 and 15, 2005, in

Jacksonville, Florida. The parties appeared as follows:

APPEARANCES

For Petitioner : Thomas M. Beverly, Esquire

Assistant General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent : Bruce R. Conroy, Esquire

Chief Administrative Law Counsel

605 Suwannee Street

Tallahassee, Florida 32399

For I ntervenor Florida East Coast Railway :

Eric L. Leach, Esquire

Milton, Leach, Whitman, D’Andrea,

Charek and Milton, P.A.

815 South Main Street, Suite 200

Jacksonville, Florida 32207

For Intervenor Kevin McLaughlin :

Kevin McLaughlin, pro se

1 622 Landon Avenue

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

Whether Resp ondent Department of Transportation (DOT) may

lawfully issue a permit authorizing Florida East Coast Railway

(FEC) to close the railroad - highway grade crossing (the

Crossing) locate d at Landon Avenue in Jacksonville, Florida.

PRELIMINARY STATEMENT

Int ervenor Kevin McLaughlin (McLaughlin) filed an

application with DOT on July 14, 2002, to close a public

railroad - highway grade crossing located in Jacksonville,

Florida.

On November 13, 2004, DOT issued a Notice of Intent to

Issue Permit to close the C rossing. Petitioner , City of

Jacksonville (Jacksonville) , timely filed a petition for a

formal administrat ive hearing on December 8, 2004, opposing the

c losing.

On December 21, 2004, DOT referred the matter to the

Division of Administrative Hearin gs for assignment of an

Administrative Law Judge and conduct of formal administrative

proceedings. FEC filed a Motion to Intervene on December 30,

2004 , and applicant McLaughlin filed a Motion to Intervene on

January 3, 2005. Both motions were granted on March 28, 2005.

A Notice of Hearing was issued on January 24, 2005 , scheduling

the matter for June 14 through 17, 2005, in Jacksonville,

Florida.

During the final hearing, Jacksonville presented the

testimony of Richard McCubbin, David B. Solomon, and Lorin Mock.

Jacksonville offered E xhibits 1 - 4, which were admitted into

evidence.

FEC presented the testimony of Kevin McLaughlin, Jerry W.

Hall, Sr., Webster Snapp, Julie Thompson, Katherine McFarlane,

Charles A. Stone, and Lynn Westbrook, and introduced the

deposition of Arthur Shad. FEC also offered E xhibits 1 - 27,

which were admitted into evidence.

DOT presented the testimony of Janice Bordelon and expert

witness, G. Rex Nicholson. Of DOT’s offered E xhibits 1 - 17,

E xhibits 1 - 9 and 11 - 17 were admitted into evidence.

The T ranscript of the proceeding was filed with the

Division of Administrative Hearings on July 5, 2005.

Subsequently the parties timely submitted P roposed Recommended

Orders that have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. On July 14, 2002, McLaughlin filed an application with

DOT for closure of the C rossing located in Jacksonville.

Subsequently, on November 13, 2004, DOT issued a Notice of

Intent to Issue a Permit (Noti ce) to authorize the closure of

the Crossing. On December 8, 2004, Jacksonville timely filed a

petition challenging the proposed granting of the perm it and

these proceedings ensued.

2. DOT’s closure program conducts studies on over 3700

public hig hway - rail grade crossings and creates an inventory to

determine crossings that could use improvement for safety

reasons and for determining crossing closure. Florida

Administrative Code Rule 14 - 57.012 outlines the standards for

opening and closing of rail road - highway grade c rossings.

Florida Administrative Code Rule 14 - 57.012(2) states that:

[ T]he Department will accept applications

for the opening and closing of public

railroad - highway grade crossing from the

governmental entity that has jurisdiction

ov er the public street or highway, any

railroad operating trains through the

crossing . . . The Department, on behalf of

the State of Florida, will also open or

close public railroad - highway grade

crossings in accordance with the criteria

set forth herein. Closure applications will

also be accepted from individual citizens or

groups, such as neighborhood associations.

Opening or closure of public railroad -

highway grade crossings shall be based upon

Notices of Intent issued by the Department,

administrative h earings conducted pursuant

to Chapter 120, Florida Statutes, or upon a

Stipulation of the Parties executed by any

applicant, governmental entity, the

appropriate railroad, and the Department . .

. If the applicant chooses to pursue the

opening or closure o f the public railroad -

highway crossing, the railroad and

governmental entity having jurisdiction at

the location are notified and provided a

copy of the application. The governmental

entity should provide a public forum for

community involvement and conta ct affected

individuals or groups to obtain input on

impacts to the community . . . .

The criteria for closing include safety, necessity for rail and

vehicle traffic, alternative routes, effect on rail operations

and expenses, excessive restriction to emergency type vehicles

resulting from closure, design of the grade crossing and road

approaches , and the presence of multiple tracks and their effect

upon railroad and highway operations. The criteria for opening

are the same except for the excessive re striction to emergency

type vehicles.

3. Through an initiative from the Federal Railway

Administration (FRA), and the Federal Highway Administration

(FHWA) to decrease the number of at - grade railroad crossings by

25 percent, DOT has made a conser ted effort to close or

consolidate, redundant, unsafe, and unnecessary crossings.

Crossing closure presents substantial benefit, inclusive of a

decrease in the funding and liability for the city and railroad,

which in turn can reroute the funding to impro ve other

transportation routes in the area , and most of all increase the

safety to the traveling public because there are fewer

intersections where cars and trains can collide.

4. Janice Bordelon, DOT’s Rail Specialist oversees the

openings and clo sings of all public highway - rail grade crossings

throughout the State of Florida. Bordelon received McLaughlin’s

application for closure on July 14, 2002. On August 14, 2002,

she sent a copy of the application to Chief Ray Alfred,

Jacksonville Fire Depar tment ; Mr. Lynn Westbrook, Jacksonville

Public Works Department ; Mr. Fred Kyle, Chief of Jacksonville

Traffic Engineering Division ; Mr. Charles A. Stone, Director of

Engineering services for Florida East Coast Railway ; and

Principal Carole Benson, Landon M iddle School. In addition, she

visited the site on at least nine occasions where she met with

the community, with Jacksonville’s officials, with the school

and school board, and participated in meetings of Jacksonville’s

safety, transportation and finance committees.

5. Bordelon requested input from Jacksonville officials

and gathered information from a variety of sources and

eventually moved forward in working with Landon Avenue Residents

and the professionals from Jacksonville to get to a Stipulat ion

of Parties that would result in closure of the Crossing. In

this process, Bordelon compiled a Closure Application Analysis

applying all the Rule criteria to the Crossing. Once the

analysis was complied, she provided it to Jacksonville

officials, the district Jacksonville councilman, the applicant,

and the S chool Board .

6. The Stipulation of Parties was eventually withdrawn and

Bordelon issued a Notice of Intent substantially adopting the

closure analysis she had done earlier. The Notice of Int ent

concluded through findings of fact and conclusions of law that

the application to close the crossing at Landon Avenue met the

requirements of the Florida Administrative Code criteria. In

summary, Bordelon found that the Crossing was located on a blind

curve, was an elevated crossing with low traffic volume, close

to alternatives routes , and was unsafe, unnecessary, and

redundant. The closure of the Crossing effectuates DOT’s policy

of promoting improved safety at railroad crossings by

eliminating chan ces where a train and car can collide.

7. Landon Avenue is located in the n ortheast part of the

San Marco neighborhood across the St. Johns River from

Jacksonville’s downtown in the core of the original city area.

Jacksonville’s public works depar tment maintains Landon Avenue.

On both sides of the Crossing, Landon Avenue is a two - lane road

with no sidewalks and would not meet Jacksonville’s construction

standards if it were built today.

8. Landon Avenue is a narrow (20 feet wide) city street

t hat begins at Kings Avenue and runs w est past the n orth - s outh

streets of Faragut Place, Dewey Place and Perry Place, all of

which have direct access to Atlantic Boulevard. Landon Avenue

makes a s outhwesterly turn and then crosses two railroad tracks.

On the w estern side of the railroad tracks Landon Avenue passes

Arcadia Place, Minerva Avenue (a one - way south street), Thacker

Avenue (a one - way north street) all with access to and from

Atlantic Boulevard. Landon Avenue continues w est and runs

through Hend ricks Avenue and ends at River Road.

9. G. Rex Nicholson, qualified as an expert witness in

forensic engineering, rail safety and design, as well as highway

safety and design, agreed with DOT’s rail specialist Jan

Bordelon and opined that the Crossing is unsafe, unnecessary and

redundant because it is located on a residential street, has low

traffic volume, is a non - necessity for travel, and is relatively

close to alternatives routes. He indicated that the first step

in the analysis of a crossing closu re is whether a grade

separation (bridge for either automobiles or trains) is

feasible. In this instance, such an alternative is not

available. Additionally, active safety measures of four -

quadrant gates could not be installed at Landon Avenue due to

the need for the installation of a non - mountable median and the

lack of right - of - way. The expert testimony of Nicholson that

grade separation is not feasible, and that only way to improve

safety at the Crossing is to proceed with closure, is un -

rebutted. Ni cholson’s testimony further establishes that Landon

Avenue is also a safety risk because street parking narrows the

20 - foot wide Landon Avenue.

10. After safety, the second applicable criterion is the

need for traffic. Testimony and data indicates that the

necessity for vehicle traffic on Landon Avenue is minimal.

There is an Average Daily Traffic (ADT) of 1473 vehicles a day

that use the crossing. Another study by DOT approximates the

Average Daily Traffic to be 1841. These are both considered low

traffic counts.

11. It is rare for residents of Landon Avenue to have a

destination on the immediate other side of the crossing. The

main travel use for Landon Avenue is as a “cut through” by non -

residents to more distan t areas and to beat trai n traffic.

12. The third applicable criterion to Landon Avenue is

whether the closing constitutes an excessive restriction to the

transportation of emergency type vehicles. Nicholson and

Bordelon found that closing Landon Avenue would not create a n

excessive restriction to emergency type vehicles. Landon Avenue

is a tree - lined, residential street only 20 feet wide with a

blind turn as the street approaches the track from the East. It

is not a main road. Residents park in the street, and

Jacksonv ille has proposed traffic - calming devices on the street.

13. Landon Avenue is not a road that is conducive to

emergency type vehicles. For the same reasons the road is

unsafe for speeding impatient motorists , it is unsafe for an

emergency vehicle cu t - through. As the majority of the

Petitioner’s case against closure revolved around the

restriction to emergency vehicles, that issue is further

addressed below.

14. The next applicable criterion for closure is the

approach of the road to the Cross ing. The design of the road

approach of Landon Avenue creates a safety hazard. As Landon

Avenue approaches the track heading w est, from Kings Road, the

road turns to the s outhwest immediately before the Crossing to

create a blind corner where vehicles ar e unable to see an

approaching train. As Landon Avenue approaches the crossing

heading e ast, from Hendricks Avenue, the view of the tracks to

the n orth is obstructed by a building and plants. These

obstructions make it very difficult for a speeding motor ist to

see an approaching train.

15. The Crossing at Landon Avenue meets DOT and FRA

initiatives for closure. It is not an arterial road, is used by

high risk motorists, and is a safety risk for train - car

collisions. Closure of the Crossing will ef fectuate the policy

of improved safety at railroad crossings by eliminating the

chance for train and car collisions.

16. The Crossing is a public at - grade railroad crossing,

designated by DOT as Crossing No. 271815X. It consists of two

mainline tra cks , a northbound mainline and southbound mainline

that transport approximately 26 trains a day through the

Crossing. In addition to FEC, Norfolk Southern Railway and CSX,

also both class one railroads, operate trains over the Crossing.

17. Present signalization at the Crossing consists of

cantilevered flashing lights and gates; and reflective cross

bucks.

18. Safety is the first criterion in closure analysis.

The Crossing is located at Railroad Mile Post 1.45, just south

of a banked curve i n the double tracks that makes it a “blind

turn” for the conductor and engineer of a southbound train.

Jerry Hall, Sr., FEC’s director of claims, narrated a video in

evidence in this proceeding that further corroborates the train

operators’ vantage point and demonstrates how the combination of

double tracks and lack of site distance in the super - elevated

banked curve create a safety hazard at the Crossing.

19. One accident occurred at the C rossing when a train

collided with a car , even though the st andard cross bucks,

lights and bells were operating. The train’s headlight was

working and on, the train’s bell was working and the proper

whistle signals were blown at the time of the accident; however ,

the train could not stop in time.

20. The cu rve in the tracks delays the time a train

operator has to avoid a collision with a car at the Crossing.

Over 50 percent of train - car collisions result from cars

avoiding passive devices and crossing tracks regardless.

Accidents at railroad crossings ofte n occur because the road

hump over the track serves as a launching ramp for thrill

seekers traveling through such intersections with trains at a

high speed. This specifically occurs because a speeding

automobile’s front wheels lift off the ground and the vehicle

continues in the direction i t was last going. When motorists

sue over accidents in these situations, it is the municipalities

or governmental entities with jurisdiction over the road that

are usually held responsible. The Crossing is a perfect

ca ndidate for this type of accident.

21. Further, the Crossing is a present safety concern for

residents of Landon Avenue because it is used by cars and

motorcycles as a ramp to “get air” in conjunction with such

motorists speeding through the neighbor hood to avoid traffic

from other Jacksonville streets caused frequently by trains at

other nearby intersections. In this regard, Residents saw a

filming crew documenting motorcycles jumping the C rossing. They

also have witnessed some individuals turn the ir bikes and

vehicles around and repeatedly jump the Crossing. In addition

to the accident noted above, Landon Avenue residents testified

that there have been several near - miss incidents at the

Crossing , i ncluding an unreported accident in which a speedin g

car hit a Landon Avenue girl.

22. The next criterion in the closure analysis is whether

there are alternative routes available. The Crossing is located

in a residential area near six crossings within one mile of

track. The next crossing to the n orth is located at 1/4 of a

mile at four - lane Hendricks Avenue and the next crossing to the

s outh is 1/5 th of a mile or 900 feet at four - lane Atlantic

Boulevard. These main artery roads, along with Kings Road ,

allow for easy access to both sides of the Cr ossing.

23. Closure of the Crossing would disperse traffic onto

three different roads: Atlantic Boulevard, Hendricks Avenue and

Kings Road. Regardless of the index ratings for these roads,

DOT’s goal of eliminating the interaction of vehicular tra ffic

with rail traffic would be accomplished. Hendricks Avenue and

Atlantic Boulevard are both four - lane main artery roads. These

are safer roads, with non - elevated crossings, that have good

sight distance for both train operators and motorists.

Motoris ts do not go around the gates at a four - lane road as

often as they do on a two - lane residential street. It would

enhance safety to have traffic crossing the railroad tracks at

Hendricks Avenue and Atlantic Boulevard rather than at Landon.

24. Additi onally, traffic safety would be enhanced by

diversion of traffic to Hendricks Avenue and Atlantic Boulevard,

thus eliminating one place where a vehicle and a train can try

to occupy the same space at the same time and lessening the

probability of a collisi on; logic shared, incidentally, with the

United States Federal Government program named “Gradec , ” that

supports traffic safety enhancement through closure of rail

crossings.

25. The next criterion in the closure analysis examines

how the closure wou ld affect rail operations and expenses. The

closure of the Crossing would decrease operating expenses for

FEC and Jacksonville. The cost of maintaining the signal

equipment and proper maintenance of the crossing would be

avoided. The substantial savings realized by Jacksonville would

include savings of $70,000.00 due to rehabilitation of the

Crossing that is necessary every six or seven years. Further,

FEC and Jacksonville liability and the associated litigation

costs exposure would diminish.

26. A criterion in the closure analysis examines the

design of the crossing and the road approach. As previously

noted, the design of the Crossing and road approach creates an

unsafe condition because of the super - elevated nature of the

tracks, and the Cros sing. There are gouge marks in the pavement

at the point of street and rail intersection at the Crossing

where the undercarriages of vehicles have scraped against the

pavement due to the elevation from the grade of Landon Avenue to

the elevated area of th e track location. To eliminate the

elevated nature of the C rossing , the road approach would have to

be raised to the level of the Crossing. Since the rail tracks

are banked at a “super - elevated curve” this would be a difficult

task.

27. The next cr iterion examines the presence of multiple

tracks and its effect on operations. The presence of multiple

tracks and their effect on the railroad and highway operations

increase the safety risk at the Crossing. Testimony of Landon

Avenue residents and the FEC Claims Director establish that

motorists go around the gates at the Crossing. Motorists expect

that when one train passes the gates will immediately lift up

and allow their vehicles to cross. When two tracks are

involved, impatient motorists often mi sunderstand that there can

be two trains coming from different directions at almost the

same time. This is especially true where there is a blind

corner and two quadrant gates. An impatient driver, unaware of

the double track, may easily go around the ga te and be caught

off guard by the second train.

28. Double tracks also increase the risk of accidents

because the train operator of a several ton train doing 25 miles

per hour on the southbound mainline has only 457 to 522 feet to

avoid a collision with an impatient driver at the Crossing.

This is not enough time to stop a locomotive engine, or a train.

29. Closing the Crossing would save the railroad and

Jacksonville operating expenses of maintaining the railroad

while enhancing safety and a chieving DOT’s goal of reducing the

probability of a train - automobile collision.

30. In 2000, McLaughlin inquired with DOT about closing

the Crossing. He then consulted with Jacksonville.

Jacksonville set up a formal meeting with the Lorin Mock,

Ja cksonville Fire Department ; Jim Suber, Jacksonville Police

Department ; and the Jacksonville councilman who was the district

representative at that time. At that meeting, the Jacksonville

professional representatives acknowledged that there were no

major p roblems with the closure of the crossing. The councilman

at the time did not follow up on sending out letters to request

community input.

31. In July 2002, after a period of inactivity regarding

the Crossing ’ s closure and after discovering DOT had authority

to close the Crossing, McLaughlin filed an application with DOT

for closure.

32. City officials had no problem with closure of the

Crossing , and the School Board Chairperson had no difficulty

with such closure. A Stipulation of Parties fo r the closure of

the Crossing was drafted and introduced to the City Council by

Councilman Art Shad. The proposal was discussed at length

before the City Council’s Transportation Committee , which

Bordelon attended on behalf of DOT. The legislation to clo se

the Crossing was then submitted to the City Council, but before

a vote could be obtained the legislation was withdrawn and

Jacksonville decided to oppose the closure. As established by

testimony of the Director of Public Works, the withdrawal of the

St ipulation of Parties was based on politics, not on any factual

findings or meaningful opposition from any Jacksonville

professional employee.

33. Considering that a school bus is not an “emergency

response type vehicle” the closure analysis regarding the bus

goes to the criteria of safety, alternative routes, and effect

on operations. There are 14 buses in the morning that come to

Landon Middle School, and 16 buses in the afternoon that come to

the school. These buses could use Arcadia Place or Hend ricks

Avenue or some other combination to cross the tracks and exit

and enter the school. Additionally, buses stack up on Landon

Avenue while waiting for the children which could possibly

result in a train - school bus collision which, as established by

tes timony of David Solomon, an employee of the Duval County

School, would be “the worst nightmare an organization can have.”

34. The Duval County School Board had previously addressed

the closure of the Crossing and indicated approval prior to

Jacksonvi lle’s reversal and decision to oppose that action.

Kris Barnes, the Duval County School Board Chair , wrote an

October 27, 2003 , letter to Ms. Bordelon stating on behalf of

the School Board that, after having spoken with the Landon

Middle School principal and the Duval County School Board Safety

Department, there would be no problem with the closing of the

Crossing. There are easily accessible alternative routes that

would not disrupt the school or school bus operations and would

result in a significant en hancement in safety.

35. Nicholson’s un - rebutted expert testimony concluded

that if Jacksonville were applying to install a new crossing at

Landon Avenue it would not meet the criteria for an opening,

which contains six of the seven criteria for clos ure. The

seventh criterion is whether the closure would cause an

excessive restriction to emergency type vehicles. Jacksonville

presented testimony, but no data, regarding the fire and rescue

vehicles using the crossing. DOT applies the word “excessive

restriction” in its rule to mean an excessive restriction for

travel. Bordelon’s analysis concluded that the ambulances and

other vehicles could easily use the alternative non elevated

crossings at Hendricks and Atlantic without being excessively

restrict ed from traveling to an emergency.

36. In processing McLaughlin’s application for closure,

Bordelon conducted an independent review of the distance and

first response times by fire and emergency vehicles to the

Crossing. Bordelon found that fire s tation 12 and fire station

13 were very close to the Crossing and could easily be reached

within the time limit goal of four to six minutes.

37. Since the Landon Avenue/ San Marco area is close to

downtown Jacksonville, there is overlapping fire and rescue

coverage from fire station s 12 and 13. Using the Atlantic

Boulevard railroad crossing, fire station 13 is approximately

0.6 miles from the 1700 block of Landon Avenue. Using the

Atlantic Boulevard railroad crossing, fire station 12 is

approximately 1.5 miles from the 1500 block of Landon Avenue.

The alternative routes that a fire/rescue response from station

13 would have to take to avoid the Crossing are minimal, or

approximately an additional fourteenth (.14) of a mile . The

alternative routes t hat a fire/rescue response from station 12

would have to take to avoid the Crossing are minimal, or

approximately an additional tenth (.10) of a mile.

Jacksonville’s Fire Chief Lorin Mock testified that the there

“would be no issue at all in the crossing closure” if it were

involved with fire responses using the Atlantic Avenue crossing

instead of the Crossing. The average response time from either

of these stations to the Crossing is 3.9 minutes. The goal

average response time by the Jacksonville Fire D epartment is six

minutes. The response time is calculated from the time a call

is made to the time the emergency vehicle arrives on the scene

and includes the 911 call and response.

38. Chief Mock and the Jacksonville Fire Department oppose

any cl osure of a railroad crossing , regardless of the safety

need for the closure. In the words of Chief Mock, rail

crossings are a “string of pearls” that the fire department uses

to cross the railroad tracks and the more opportunities to cross

the better. He acknowledged that he was looking at the

definition from an emergency response standpoint.

39. Per Nicholson’s un - rebutted expert testimony, there is

no appreciable difference in response times and distances and no

excessive restriction to the trans portation of emergency

vehicles. Chief Mock’s acknowledgement that the residents of

Landon Avenue have “pretty good” overlapping fire coverage

because the spacing of fire stations are closer in the core city

area, and fire hydrants are available on both s ides of the track

serves to corroborate this determination. The closure would not

result in excessive restriction to the transportation of

emergency vehicles.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter.

§ 120.57(1), Fla . Stat.

41. McLaughlin, FEC and DOT have the burden of proving by

a preponderance of the evidence that the Crossing should be

closed. Dep’t. of Transp. v. J.W.C. Co. Inc . , 396 So. 2d 778

(Fla. 1 st D CA 1981).

42. DOT 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 Transportation , 399 So. 2d 1075 (Fla. 2d DCA

1981 ).

43. To carry out its responsibility, DOT has promulgated

Florida Administrative Code Rule 14 - 57.012, which provides in

pertinent part:

(1) Purpose . To establish standards for

the opening and closing of public railroad -

highway grade crossings. The objectives of

these uniform standards will be to reduce

the accident frequency and severity at

public railroad - highway grade crossings, and

improve rail and motor vehicle operating

efficiency.

(2) Opening and Closing Public Railroad -

Highway Grade Cr ossings. The Department

will accept applications for the opening and

closing of public railroad - highway grade

crossings from the governmental entity that

has jurisdiction over the public street or

highway; any railroad operating trains

through the crossin g; any other applicant

for a public railroad - highway grade crossing

provided there is in existence an agreement

between the applicant and governmental

entity to assume jurisdiction as a public

crossing. The Department, on behalf of the

State of Florida, w ill also open or close

public railroad - highway grade crossings in

accordance with the criteria set forth

herein. Closure applications will also be

accepted from individual citizens or groups,

such as neighborhood associations. Opening

or closure of publi c railroad - highway grade

crossings shall be based upon Notices of

Intent issued by the Department,

administrative hearings conducted pursuant

to Chapter 120, Florida Statutes, or upon a

Stipulation of Parties executed by any

applicant, governmental entity, the

appropriate railroad, and the Department.

The burden of proof for the opening or

closing of a crossing is on the applicant.

Acceptance of any application for processing

by the Department shall not be construed as

indicating the Department's position

r egarding the application. If the

preliminary review of the application does

not support the crossing opening or closure,

the applicant will be advised of these

findings. The applicant may choose to

withdraw the application or continue the

process. If wi thdrawn, the process is

concluded. An applicant may suspend an

application at any time. If the applicant

chooses to pursue the opening or closure of

the public railroad - highway crossing, the

railroad and governmental entity having

jurisdiction at the loc ation are notified

and provided a copy of the application. The

governmental entity should provide a public

forum for community involvement and contact

affected individuals or groups to obtain

input on impacts to the community. The

expense of crossing clo sures or openings,

which shall include installation,

maintenance, and replacement of grade

crossing traffic control devices and grade

crossing surfaces, will be the

responsibility of the applicant, unless

otherwise negotiated and accepted by all

parties.

* * *

(c) Closure of Public Railroad - Highway

Grade Crossings

In considering an application to close a

public railroad - highway grade crossing, the

following criteria will apply:

1. Safety.

2. Necessity for rail and vehicle traffic.

3. Alternate routes.

4. Effect on rail operations and expenses.

5. Excessive restriction to emergency type

vehicles resulting from closure.

6. Design of the grade crossing and road

approaches .

7. Presence of multiple tracks and their

effect upon railroad and highway

operations.

44. In determining whether the Application should be

approved, DOT considered all of the regulatory criteria for

closure. Further, the agency substanti ally complied with those

procedures for the handling of crossing closure applications.

45. The Crossing has significant safety hazards,

including:

(a) visibility obstructions for train crews and

motorists;

(b) Inability of so uthbound trains to stop

in advance of the Crossing based upon the

location of the Crossing in a super - elevated

curve;

(c) Motorists regularly driving around the

crossing gates at the Crossing;

(d) Motor vehicles and motorcycles leaving

the road surface due to the elevation at the

Crossing;

(e) School bus use of the Crossing;

(f) Narrow road width; and

(g) High speed motor vehicle traffic

through a residential neighborhood.

46. There is an existing reliable, alternate route for

vehicle traff ic over Atlantic Boulevard that roughly parallels

Landon Avenue.

47. The alternate route connects to cross streets that

provide good access for residents on both sides of the Crossing.

48. The City of Jacksonville Public Works Department

determ ined the Crossing was not necessary for motor vehicle

traffic based upon the low traffic volume and existence of

reliable, alternate routes.

49. The closure of the Crossing will have a beneficial

effect on rail operations and expenses based upon the railroad’s

potential liability exposure for accidents at the crossing and

the regular presence of motorists crossing around lowered

crossing gates in front of trains.

50. The evidence failed to prove that the closure of the

Landon Avenue crossing wil l cause an “excessive” restriction to

emergency type vehicles. To the contrary, response times for

emergency vehicles would not be materially impacted by the

closure.

51. The design of the grade crossing and road approaches

are not optimal based upo n the visibility obstructions for

motorists and the elevation at the Crossing.

52. Finally, the Crossing has multiple tracks, which

creates additional safety risks for train crews and motorists.

When speaking of risk and determining whether a risk is

excessive, the words of President John F. Kennedy are

appropriate to consider:

There are risks and costs to a program of

action. But they are far less than the

long - range risks and costs of comfortable in 1/

action .

53. In this case, DOT, Mclaug hlin, and FEC have

successfully borne their burden of proof by showing that the

closing of the Landon Avenue crossing effectuates DOT’s policy

of improved safety at railroad crossings through elimination,

where reasonably convenient, of the interaction of motor vehicle

traffic with rail traffic.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that a Final Order be entered approving the

requested permit for closure of Department of Transportation

Cro ssing No. 271815X in Jacksonville, Florida.

DONE AND ENTERED this 5 th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 5 th day of August , 2005.

ENDNOTE

1 / John F. Kennedy

The Classic Quotation Collection

http://www.quotationspage.com/quotes/John_F._Kennedy/

COPIES FURNISHED :

James C. Myers, Clerk of the Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwann ee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Jose Abreu, Secretary

Department of Transportation

Haydon B urns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Bruce R. Conroy, Esquire

Department of Transportation

Hayd o n Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 045 0

Eric L. Leach, Esquire

M ilton, Leach, Whitman, D’Andrea,

Charek and Milton, P.A.

815 South Main Street, Suite 200

Jacksonville, Florida 32207 - 8157

Thomas M. Beverly, Esquire

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Kevin McLaughlin

1662 Landon Avenue

Jacks onville, Florida 32207

Marlene Hammock

Florida East Coast Railway, L.L.C.

One Malaga Street

St. Augustine, Florida 32084

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.