06-001491 Csx Transportation, Inc. vs. Department Of Transportation And Manatee County Status: Closed Recommended Order on Thursday, November 16, 2006.

Summary: Respondent Manatee County demonstrated that its proposed railroad-highway crossing meets the applicable criteria contained in Florida Administrative Code Rule 14-57.012(2)(a) and should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CSX TRANSPORTATION, INC. , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1491

)

DEPARTMENT OF TRANSPORTATION )

AND MANATEE COUNTY , )

)

Respondent s . )

)

RECO MMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on August 22 and 2 3 , 2006, in

Bradenton, Florida.

APPEARANCES

For Petitioner: Lawrence N. Curtin, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Post Office Box 810

Tallahassee, Florida 32302 - 0810

For Respondent Department of Transportation:

Bruce R. Conroy, Esquire

Chief, Administrative Law

& Real Property Division

Department of Transportation

Hayden Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee , Florid a 32399 - 0458

For Respondent Manatee County:

Rodney C. Wade, Esquire

Robert M . Eschenf elder, Esquire

Manatee County Attorney's Office

Post Office Box 1000

Bradenton, Florida 34206 - 1000

STATEMENT OF THE ISSUE

The issue is whether the application submitted by Manatee

County to the Florida D epartment of Transportation to o pen a

railroad - highway grade crossing in Bradenton, Florida, meets the

criteria set forth in Florida Administrative Code Rule 14 -

57.012(2)(a)1 - 6.

PRELIMINARY STATEMENT

Respondent, Manatee County, Florida (the "County") , filed

an application with Responden t, Department of Transportation

("FDOT" or the "Department"), on November 21, 2002, for a permit

to open an at - grade railroad - highway crossing within the county

at 44th Avenue East . The Department notified Petitioner, CSX

Transportation, Inc., of the fili ng of the application by letter

dated November 25, 2002. The Department issued a Notice of

Intent to Permit the opening on October 5, 2004. Petitioner

timely filed a Petition for Administrative Hearing on

October 28, 2004. The Department referred the m atter to the

Division of Administrative Hearings for the assignment of an

Administrative Law Judge on April 21, 2006. A Notice of Hearing

was issued on May 9, 2006, setting the matter for hearing in

Bradenton, Florida.

At the hearing, FDOT presented the testimony of Janice

Bordelon and offered E xhibit Nos. 1 through 5, which were

admitted into evidence. Manatee County presented the testimony

of Robert Shankle; Jeffrey Trim, P.E., who was accepted as an

expert in the design of rail crossings and road des ign; G. Rex

Nichelson, Jr., P.E., who was accepted as an expert in the

opening and closing of railroad crossings; Jim Staples; Larry

Mau, P.E.; and Harry Mendenhall, P.E.; and offered E xhibit Nos.

1 through 27 into evidence , all of which were received exce pt

for Exhibit Nos. 10 and 27 . Petitioner presented the testimony

of Clifton Stayton and Eric Gary Peterson, and offered no

exhibits into evidence.

A Transcript was filed on September 19, 2006 . After the

hearing, Petitioner and Respondent s filed their Proposed

Findings of Fact and Conclusions of Law on October 30, 2006 .

References to statutes are to Florida Statutes (2005)

unless otherwise noted.

FINDINGS OF FACT

1. Respondent, Manatee County, filed an application with

FDOT for the opening of a pu blic highway - rail grade crossing

between railroad mile posts SW 912.27 and SW 911.87, to cross

over the CSX Transportation rail line (the "Crossing"). The

Crossing is proposed in connection with the expansi on of a

portion of 44th Avenue E ast, from 15th St reet East extending

eastward to 19th Street Court East. The extension of 44th

Avenue is part of an east - west corridor within Manatee County

that the County plans to extend east to U.S. 301, and is an

extension of Cortez R oad which terminates at the beache s of

M anatee County to the west.

2. The Department's public railroad - highway grade crossing

program conducts studies on the more than 3700 public highway -

rail grade crossings in Florida and creates an inventory to

determine crossings that might be impro ved for safety reasons

and for closure. Florida Administrative Code Rule 14 - 57.0 12

establishes the standards for opening and closing public

railroad - highway grade crossings.

3. The Department has endeavored to close or consolidate

redundant, unsafe, an d unnecessary crossings through an

initiative from the Federal Railway Administration and the

Federal Highway Administration to decrease the number of at -

grade railroad crossings by 25 percent. The goal has not yet

been met.

4. Petitioner's policies dic tate that before it agrees to

a new crossing of one of its tracks, three existing crossings

should be closed in connection with the opening.

5. The County agrees that it is good policy to close as

many existing crossings as possible when opening a new cr ossing.

The closings help to decrease the potential for motor vehicle

and train collisions, bicycle and train collisions, and

pedestrian collisions with a train or flying debris from a

train.

6 . Janice Bordelon, the Department's Rail Specialist,

overse es the opening and closing of all public highway - rail

grade crossings throughout the State of Florida.

7 . When she received the County's application for opening

on November 21, 2002, she sent a copy of the application to

Petitioner.

8 . Ms. Bordelon vis ited the proposed opening site and the

surrounding area on at least three occasions.

9 . The Department sought input from both the County and

Petitioner when considering the application for the Crossing.

10 . The land in the vicinity of the Crossing is v aried to

the north and is designated as light manufacturing. The area to

the south is designated as warehousing and vacant industrial.

The area to the east of the terminus of the Crossing is

agricultural land. Much of the property in the area north and

south of the Crossing is vacant, but scheduled for future use as

an operations center.

11 . The railroad track in the vicinity of the Crossing is

owned and operated by Petitioner. CSX Transportation, Inc., is

the largest railroad in the eastern United St ates with

approximately 22,000 route miles. Petitioner operates in 23

states, the District of Columbia, and two Canadian provinces.

It is headquartered in Jacksonville, Florida.

1 2 . Petitioner's operations in the vicinity of the

Crossing currently invo lve the interchange of cars with the

Seminole Gulf Railroad, just south of the Crossing. The purpose

of the interchange is to exchange cars between two railroad

companies. Current operations involve approximately eight train

movements per week, consistin g of 20 rail cars in each movement.

Trains using this track travel at a speed of 20 miles per hour

currently. The speed could change with the approval of the

Crossing.

1 3 . The potential exits for Petitioner to increase its

utilization of the track in t he area of the Crossing. This

would occur as a result of increased utilization of rail as a

result of growth in both Manatee County and Florida. Based upon

the character of the area near the Crossing, the possibility

exists for location of a manufacturin g facility or distribution

center that could result in increased rail traffic.

14 . The Department reviewed and analyzed the safety of the

proposed 44th Avenue C rossing, including the volume of rail and

vehicle traffic, the proximity of existing crossings , the angle

of proposed crossing, and surrounding land uses. The Department

proposed solutions for mitigation of the identified safety

issues through traffic synchronization and other design features

such as curbs and signalization.

15 . The Intent to P ermit issued by the Department

recommends that the County pursue the consolidation of

unnecessary rail crossings, especially those with light traffic

and within a quarter mile of an existing crossing. The County's

expert identified two such crossing s for potential closure.

16 . Mr. G. Rex Nichelson, an expert in railroad crossing

openings an d closings, testified that the C rossing would

ultimately be designed by the joint efforts of Petitioner and

the County, resulting in the safest feasible design for the

Crossing. He noted that there would be no possibility of a hump

at the Crossing and that the design would utilize either an

attenuator known as Kwik C urb or a nine - inch , non - mountable

median to minimize the opportunity for drivers to circumvent the

cross ing gates and place themselves in harm's way.

1 7 . Petitioner would also be involved in the final design

of the Crossing.

1 8 . The design features would enhance the safety of the

Crossing.

1 9 . A flyover crossing, one that would divert traffic from

dire ct contact with the rails at the Crossing, is prohibitively

expensive and not justified in this case.

20 . The tracks are visible upon approach of the Crossing.

21 . The Department considered pedestr ian and bicycle

traffic at the C rossing, and determined it would not be

significant.

22 . Trespass can occur in the area of railroad tracks ,

regardless of whether the Crossing were opened.

23 . The Department and the County collaborated to identify

possible closures to offset the Crossing, and several were

i dentified as a result.

24 . The Department determined the Crossing is necessary to

alleviate existing vehicular traffic and serve planned

industrial land uses in the area of the Crossing.

25 . The Crossing will draw a considerable amount of

traffic from the existing roadway system onto a new roadway

better designed to accommodate the traffic volume. Currently,

traffic in the area of the proposed crossing is heavy,

especially at peak times.

26 . Alternative routes for east - west vehicular traffic

were exa mined and considered, but the 44th Avenue extension

appears to be the safest, most direct way for the County to

complete an east - west corridor in the area of the Crossing.

27 . The County considered alternative alignments for the

Crossing, but none of the se were preferable to the one selected

due to sharp, unsafe crossing angles and increased right - of - way

costs.

2 8 . The Crossing will affect rail operations and expenses

due to increased liability and some maintenance costs. The

County would also bear inc reased liability and would bear most,

if not all, of the costs of maintenance, operation, and

construction.

2 9 . The effect on rail operations would occur primarily

during the construction phase of the Crossing. The effects on

operations of the rail woul d be limited since no switching

movements of trains in the area of the Crossing will occur, and

based upon the fact that only a single track exists in the area

of the Crossing. The parties did not attempt to quantify the

extent of the effect on Petitioner 's operations other than to

anecdotally state that delays could occur , affecting crew

overtime and the scheduling of cars , which could result in

missed connections.

30 . Safety hazards exist associated with a crossing during

switching operations. When a train is stopped during switching

operations, some motorists become impatient and attempt to pull

around the train. Some pedestrians even attempt t o crawl over

or under the train. The locomotive and train engineer could be

20 to 30 - car lengths away when this occurs, and not see the

pedestrians or motorists when restarting the train. However,

c urrent rail switching north and south of the Crossing would not

block the Crossing, and no evidence was produced to demonstrate

that Petitioner planned to establish additional switching

movements in the area.

31. Vehicles carrying hazardous materials or wastes

present a concern since they could cause harm if the chemicals

or waste were released. Additionally, these vehicles are

required to stop at railroad crossin gs , which could lead to

rear - end collisions. School buses approaching the railway must

also stop before crossing , which can also lead to rear - end

collisions by motorists.

32 . The Department considered the design of the grade

crossing and road approache s. The Department considered the

angle of crossing and made recommendations to minimize a ny

dangers associated with the C rossing. If necessary,

modifications would be made to the crossing gates in order to

sufficiently protect motorist, bicyclists and pe destrians from

crossing the railway when a train approaches. The plans

submitted by the County might require modification during the

design phase of the project. The project meets or exceeds the

Department's engineering and design criteria.

33 . The an gle of skew of the Crossing is reasonable.

34 . The grade in the area of the Crossing is flat and the

Crossing itself will be flat.

CONCLUSIONS OF LAW

3 5. The Division of Administrative Hearings has

jurisdiction over the subject ma tter of and the partie s to this

proceeding. § 120.57(1), Fla. Stat.

36. The Department exercises regulatory authority over all

public railroad - highway grade crossings in the State of Florida

pursuant to authority contained in Section 335.141, Florida

Statutes. City of Pl ant City v. Department of Transportation ,

399 So. 2d 1075 (Fla. 2d DCA 1981).

3 7 . To carry out its statutory duties, the Department has

promulgated Florida Administrative Code Rule 14 - 57.012 (1) and

(2), which provide as follows:

(1) Purpose. To establi sh 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 veh icle operating

efficiency.

(2) Opening and Closing Public Railroad -

Highway Grade Crossings. T he Department

will accept applications for the opening and

closing of public railroad - highway grade

crossing from the governmental entity that

has jurisdiction over the public street or

highway ; any railroad operating trains

through the crossing ; any other applicant

for a public railroad - highway grade crossing

provided there is in existence an agreement

between the applicant and the governmental

entity to assume jurisdiction as a public

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 indiv idual citizens or groups,

such as n eighborhood associations. Opening

or closure of public railroad - highway grade

crossings shall be based upon Notices of

Intent issued by the Department,

administrative hearings conducted pursuant

to Chapter 120, F . S . , or upon a s tipulation

of the p arties 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

regarding 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. I f the applicant chooses to

pursue the opening or closure of the public

railroad - highway crossing, the railroad and

governmental entity having jurisdiction at

the location are notified and provided a

copy of the application. The governmental

entity should provide a public forum for

community involvement and contact affected

individuals or groups t o obtain input on

impacts to the community. The expense of

crossing closures 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.

3 8 . FDOT has established criteria for opening a public

railroad - highway crossing, as set forth in Florida

Administrative Code Rule 14 - 57.012 (2) (a) :

1. Safety.

2. Necessity for rail and vehicle traffic.

3. Alternate routes.

4. Affect on rail operations and expenses.

5. Design of the grade crossing and rail approaches.

6. Presence o f multiple tracks and their affect upon

Railroad and highway operations.

3 9. Manatee County and t he Department have the burden of

proving by a preponderance of the evidence that the Crossing

should be opened. Fla. Admin. Code R . 14 - 57.012(2); Depa rtment

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

DCA 1981).

40. In considering Manatee County's application for

opening of the Crossing, the Department considered the six

criteria for opening mandated by Florida Administrative Code

Rule 14 - 57.012. The opening of the Crossing, through an

examination of the criteria, meets the stated purpose of Florida

Administrative Code Rule 14 - 57.012, namely, to reduce accident

frequency and severity and to improve rail and motor vehicle

operating efficiency.

41. The evidence presented in this case demonstrates that

the opening of the Crossing will present some safety hazards,

but those hazards are no different from those typically found at

any railway crossing. Moreover, as the analysis below will

demonstrate, Petitioner seeks to propose a crossing that will be

as safe, within the bounds of reason, as a crossing can be.

42. The evidence demonstrates that the Department applied

all six of the rule cri teria to Petitioner's proposed C rossing.

4 3. The Crossing meets Criterion One concerning safety.

The design and alignment of the Crossing includes features that

will maximize the safety of the Crossing. The Department

analyzed the relevant volume of rail and motor vehicle traffic,

proximity of existing crossings, angle and grade of the proposed

C rossing, surrounding land uses, and proposed mitigation of

identified safety issues through the use of traffic

synchronization, curbs, and signalization. The expected

cooperative design efforts between Petitioner and the County

will further ensure the safest design possible.

44. The Crossing meets Criterion Two concerning necessity.

The opening of the rail crossing will alleviate traffic burdens

within Manatee County, and fits within the County's

tra nsportation plan for traffic flow and emergency operations.

45. The Crossing meets Criterion Three concerning

alternative routes. The County performed an alternative route

study and found the alternatives not to be feasible or

preferable to the pro pose d C rossing. A flyover of the proposed

crossing site is neither financially feasible nor justified for

a crossing having this level of expected traffic.

46. The Crossing m eets Criterion Four concerning the

effect on rail operations and expenses. Based u pon the evidence

produced by Petitioner, the opening of the Crossing will have an

adverse effect on Petitioner's rail operation s only during the

time of construction of the Crossing. The effect on

P etitioner's rail operations will be minimal once the proj ect is

completed. The cost of maintaining the C rossing will be borne

by the County, not Petitioner. The costs associated with the

potential railway liability by both Petitioner and the County

are not certain based upon the evidence produced at hearing.

The potential costs due to accidents will be further mitigated

by the safe crossing proposed by the County, as well as the

County's intent to seek closure of other railway crossings in

Manatee County. The potential liability costs posed by

Petitioner do n ot outweigh the demonstrated necessity for

opening the Crossing.

47. The Crossing meet s Criterion Five concerning design of

the grade crossing and road approaches. The propose d design for

the C rossing will meet all applicable road - rail standards. The

d esign will be completed as a joint effort between the County,

the Department, and Petitioner and will ensure the safety of the

Crossing. No visibility factors were identified that should

preclude the opening of the Crossing.

48. Criterion Six is not ap plic able to the Crossing. The

proposed C rossing covers a single track , not multiple tracks as

contemplated by this criterion.

49. On balance, the County has met its burden of

demonstrating that its application meets the applicable criteria

for approval and will provide a safe, well - designed crossing at

44th Avenue in Bradenton, Manatee County, Florida. Petitioner's

challenge to the application is not sufficient to overcome the

evidence presented by both the County and the Department at

hearing and lead s to the conclusion that the County's

application for a public railroad - highway grade crossing should

be approved.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a Final Order be entered approving the

reques ted permit for opening a public railroad - highway grade

crossing at 44th Avenue East, between mile posts SW 912.27 and

SW 911.87, in Manatee County, Florida.

DONE AND ENTERED this 16 th day of November , 2006, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 1 6 th day of November , 2006 .

COPIES FURNISHED :

Bruce R. Conroy, Esquire

Chief, Administrative Law

& Real Property Division

Department of Transportation

Hayden Burns Building, Mail Station 58

605 Suwannee S treet

Tallahassee, Florida 32399 - 0458

Lawrence N. Curtin, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Post Office Box 810

Tallahassee, Florida 32302 - 0810

Rodney C. Wade, Esquire

Robert Michael Eschenfelder, Esquire

Manatee County Attorney's Office

Post Office Box 1000

Bradenton, Florida 34206 - 1000

James C. Myers, Clerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Denver Stutler, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tall ahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency t hat

will issue the Final Order in this case.