HomeMy WebLinkAbout1999113vdh.docxDECISION MEMORANDUM
TO:COMMISSIONER HANSEN
COMMISSIONER NELSON
COMMISSIONER SMITH
MYRNA WALTERS
TONYA CLARK
RON LAW
DAN VICKERS
DAVID SCOTT
WORKING FILE (Reg Car)
FROM:DON HOWELL
DATE:JANUARY 13, 1999
RE:PETITION TO CLOSE THE “OLD” GRADE CROSSING IN PONDERAY, CASE NO. UPR-R-99-1
On November 23, 1998, the Commission received a letter from Union Pacific’s Manager of Industry and Public Project requesting that the Commission issue an Order authorizing the closure of an “old” grade crossing in Ponderay located at Milepost (MP) 76.12. This crossing and its “new” replacement located at MP 76.45 have been the subject of controversy dating back to 1987. Over the years, the City of Ponderay and others have objected to the closing of the “old” crossing. On November 27, 1998, the Administrator of the Regulated Carrier Division forwarded a letter to the City inquiring whether it concurred in UP’s current request to close the “old” crossing. On December 10, 1998, the City replied and stated that it continues to object to the closure of the “old” crossing.
BACKGROUND
This is the third time in almost 12 years that Union Pacific (or its wholly-owned subsidiary) has requested an Order authorizing closure of the “old” crossing. In order to understand and appreciate the circumstances surrounding this matter, the map (not to scale) on the following page is provided for your information.
1. The intial application. In September 1986, UP and the City of Ponderay entered into an agreement to construct a new grade crossing for entry into the Bonner Mall at MP 76.45 (the new crossing). In exchange for granting a right-of-way across the railroad’s mainline, the agreement called for closure of an existing crossing at MP 76.18 (the old crossing). When the new crossing was opened in November 1986, the railroad began to demolish and close the old crossing. Once demolition started, the Sandpoint Discount Warehouse filed an objection with the Commission. Eventually, the City of Ponderay filed a Petition with the Commission requesting that it hold a hearing to determine whether the old crossing should be closed. Order No. 21357 containing more background information is attached.
The old crossing and “access” road intersects with the Mall’s frontage road and are parts of old U.S. Highway 95. This roadway was abandoned when U.S. 95 was relocated to its current location to the west. When relocated, the northern portion of old U.S. 95 was deeded to the Mall.
Following a hearing, the Commission authorized the closure of the old crossing once two conditions were met. First, the new crossing was to be equipped with automated flashing signals and barrier gates. In addition, Southbound State Highway 200 would be widened to accommodate a deceleration/right-turn lane into Bonner Mall via the new crossing. Northbound Highway 200 would be widened also to accommodate a center left-turn-only lane at the new crossing. Second, the Mall was to convey to a public entity or in some manner permanently ensure that motorists using the entire commercial development will have access to the new crossing. This second condition was imposed because the Commission was concerned that the Mall could (although it has shown no inclination to do so) control vehicular access to the new crossing for patrons of nearby businesses other than the Mall through its ownership of the vacated portion of old U.S. 95. Order Nos. 21357 and 21442.
2. The second petition. In June 1994, UP again petitioned the Commission for an Order authorizing the closure of the old crossing. The Railroad asserted that the two conditions contained in Order No. 21357 had been met. In response, the City of Ponderay objected observing that the turn bays for State Highway 200 had not been constructed. In October 1994, the Railroad subsequently withdrew its request. Order No. 25783.
3. Present Application. In the present Application, UP maintains that the conditions contained in Order Nos. 21442 and 21357 have been met. In response, the City of Ponderay again objects to the closure of the old crossing. Although the City acknowledged that the required signalization and highway construction had been completed, the City maintained that the second requirement (assurance of access) had not been met. In addition, the City also noted that many new businesses have located in the Mall area and the closure of the old crossing would adversely affect these new businesses. Finally, the City maintained that subsequent research indicated that the relocation of old US Highway 95 resulted in certain properties adjacent to the old crossing being granted right-of-way to and from both Highway 95 and State Highway 200.
THE COMMISSION’S ROLE
Chapter 3 of Title 62 governs the Commission’s role regarding grade crossing disputes. In particular, Idaho Code § 62-305 provides that at such time as a new crossing is constructed “or whenever the closing and abandonment of an existing crossing is in the interest of and reasonably necessary for the public safety, or an existing crossing is no longer necessary as a public crossing for any reason, then the old grade crossing shall be deemed to be unnecessary and may be eliminated and discontinued.” If there is an objection to the closure, then the Railroad
shall petition the public utilities commission for an order eliminating and discontinuing said grade crossing . . . and said commission shall be and is hereby authorized and empowered to hear and determine said petition in accordance with the provisions of [the public utilities law]. [I]f upon hearing duly had [the Commission] shall find and determine that the closing and abandonment of such grade crossing is in the interest of, and reasonably necessary for the public safety, or that said crossing is no longer reasonably needed, it shall make an order authorizing the closure and abandonment of said crossing. Id. See also Idaho Code § 62-304.
STAFF RECOMMENDATION
After reviewing the files in this matter, the Staff recommends that the Commission inquire of the parties whether this matter can be settled. More specifically, Staff recommends that an informal settlement conference (without Commissioners) be convened next month to allow the parties, in a face-to-face situation, to determine if the matter can be settled. If the parties are unable to reach settlement, then they could stipulate to a discovery/hearing schedule.
COMMISSION DECISION
Does the Commission adopt the Staff’s recommendation to convene a settlement conference in February 1999, at which time, the parties can present their positions and determine if settlement of this matter is possible?
Don Howell
vld/M:UP-R-99-01.dh