1999312vdh.docx

DECISION MEMORANDUM
TO:COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
MYRNA WALTERS
TONYA CLARK
RON LAW
DAN VICKERS
DAVID SCOTT
WORKING FILE (RCD)
FROM:DON HOWELL
DATE:MARCH 12, 1999
RE:PETITION TO CLOSE THE “OLD” RAILROAD GRADE CROSSING IN PONDERAY, CASE NO. UPR-R-99-1
In November 1998, the Commission received a letter from Union Pacific Railroad’s Manager of Industrial & Public Projects (John W. Trumbull) requesting that the Commission issue an Order authorizing the closure of an “old” grade crossing in Ponderay, Idaho located at Milepost (MP) 76.12.  In December 1998, the City of Ponderay objected to closure of the “old” crossing.  The old crossing and its “new” replacement located at MP 76.45 have been the subject of controversy dating back to 1987.  In Order No. 27900 issued January 29, 1999, the Commission scheduled a settlement conference for February 9, 1999 in Sandpoint.  The purpose of the settlement conference was to provide the parties with an opportunity to determine whether they could resolve this matter without further proceedings.
BACKGROUND
Order No. 27900 recounts the history of this grade crossing dispute.  Briefly, in September 1986, Union Pacific and the City of Ponderay entered into an agreement to construct a new grade crossing for entry into the Bonner Mall.  In exchange for granting a right-of-way across the Railroad’s two sets of tracks (a mainline and a passing track), the agreement called for closure of the old grade crossing.  Once the new crossing was installed and UP began to close the old crossing, a neighboring business objected to the closure.  Subsequently, the City of Ponderay filed a Petition with the Commission that it hold a hearing to determine whether the old crossing should be closed.
The map set out below depicts the area in question.  This area is referred to as the “commercial triangle.”  The old crossing and its “access” road intersects with the Mall’s frontage road and were part of old U.S. Highway 95.  This “old” 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 (see the circled portion on the attached map) was deeded to the Mall.  The old crossing serves the southern part of the commercial triangle.  The commercial triangle’s boundaries are formed by the Mall on the north side,  new U.S. 95 on the west side, and State Highway 200 on the east side.  The two highways intersect at the southern point of the commercial triangle.  
Following a hearing in 1987, the Commission authorized closure of the old crossing upon three conditions.  First, the new crossing was to be equipped with automatic flashing signals and barrier gates.  Second, south bound State Highway 200 would be widened to accommodate a deceleration/right-turn lane into Bonner Mall via the new crossing.  North bound Highway 200 would be widened also to accommodate a center left-turn-only lane at the new crossing.  Third, the Mall was to convey a portion of old U.S. 95 (circled on the map) to a public entity or in some other manner permanently ensure that motorists using the entire commercial development will have access to the new crossing.  This third condition was imposed because the Commission was concerned that the Mall could (although there was no indication that it would do so) deny vehicular access to the new crossing for patrons of the nearby businesses other than Mall.
In the present Application, UP maintained that the three conditions contained in the Commission’s Order Nos. 21442 and 21357 have been met.  Although the City acknowledged that the first and second conditions have been satisfied, the City maintains that the third requirement has not been met.  In addition, the City also noted in its objection that many new businesses have located in the Mall area and the closure of the old crossing would adversely affect these new businesses.
THE SETTLEMENT CONFERENCE
The Commission Staff convened a settlement conference on February 9, 1999.  More than 20 persons attended the conference including representatives from the Idaho Transportation Depart­ment (ITD), the City of Ponderay, Bonner Mall, Union Pacific, the Sandpoint McDonald’s, and neighboring businesses.  The Railroad and ITD’s rail safety specialist from Boise characterized the old crossing as unsafe.  ITD’s rail safety expert indicated that there was a train-car accident at the old crossing in 1995.
District 1, ITD representatives indicated that planning was underway again to relocate or improve U.S. Highway 95.  Although public hearings have not yet been held on the highway project, ITD indicated that it was considering restricting the access points on the west side of the commercial triangle (Tibbetts Drive and Bonner Mall Way).  In particular, ITD was considering making Tibbetts Drive a right-in and right-out access point.  If implemented, this would prohibit southbound traffic on U.S. 95 from turning into Tibbetts Drive and southbound traffic from Tibbetts Drive from turning onto U.S. 95.  The intersection of U.S. 95 and Bonner Mall Way also would be fully signalized.
The Mayor of Ponderay said the part of Fontaine Drive that the Commission required to be granted to a public entity as the third condition (circled) had not been accomplished.  The Mayor indicated that section of roadway along its width was divided equally between Bonner Mall on the west and the McDonald’s restaurant on the east.
Many of the businesses located in the commercial triangle indicated that closure of the old crossing would seriously inconvenience their operation.  In particular, several of the businesses indicated that they use the old crossing for their longer length vehicular traffic.  In particular, they indicated that the configuration of the present roadway system (the intersection of Fontaine Drive and Bonner Mall Way, and the acute turns on East Park Gate Drive) do not permit large vehicles to conveniently and safely move to and from their businesses.  They said that longer vehicle combinations use the old crossing to ingress and egress the southern part of the commercial triangle.  A business representative also said that there had been three auto accidents at the new crossing.
The participants at the settlement conference also discussed the possibility of utilizing  the U.S. Highway 95 project funds to: 1) improve the roadway configuration in the commercial triangle; 2) signalize the old crossing; or 3) improve access to new U.S. 95.  Participants were advised that signalization of the old crossing would cost between $200,000 and $300,000.  ITD’s rail safety expert stated that rail safety money from the grade crossing protection account would not be available because there were other rail crossings much higher on the safety prioritization list.  See Idaho Code §§ 62-304A and 62-304D. Consequently, funds for any signalization project have to come from the city or other sources such as the highway project fund.
At the conclusion of the settlement conference, Union Pacific’s representative and the other attendees agreed to participate in the ITD public hearing process for U.S. Highway 95 and to seek funds to signalize the old crossing or otherwise improve access or circulation in the triangle.  The attendees agreed that the PUC proceeding could be held in abeyance until these other alternatives could be explored in greater detail.  ITD also agreed to provide data concerning the number of vehicles using the old and new crossings.
ITD reported that the average daily trips (ADTs) at the new crossing is 637 vehicles with a peak hour rate of 226 vehicles.  The ADTs for the old crossing is 182 vehicles with the peak hour rate of 79 vehicles.
UP’S SUBSEQUENT LETTER.
On March 4, 1999, the Railroad’s Manager of Industrial & Public Projects forward a letter to the Commission.  In his letter, Mr. Trumbull states that the old crossing is a
dangerous crossing that should have been closed many years ago.  Since the Railroad’s requests that the crossing be closed have been ineffectual, the Railroad has no choice but to request that if the IPUC not close the crossing, the city, state or federal government must bear the expense for installation of  surface improvements, signal lights and gates.  Nevertheless, the Railroad’s position remains unchanged in its desire to have the old crossing closed.  It makes no sense to incur the expenses to improve the old crossing when there is a new crossing that accesses the area only 1/3 of a mile away.
. . . .
Let there be no misunderstanding regarding Union Pacific Railroad’s position regarding the closure of [the old] crossing.  The agreement [the] Railroad negotiated with the City of Ponderay required the closure of the old crossing upon completion of the new Bonner Mall crossing, which the City agreed to pursue and support.  The reason that the Railroad agreed to the “relocation” of the crossing was because of safety concerns at the old crossing.  The Railroad has completed its portion of the Order by constructing the new grade and installing signal lights and gates.  The state has completed its portion of the Order by installing turn bays off of State Highway 200.  The Railroad and the state of no authority to convey the frontage road property that is or was owned by the owners of Bonner Mall.  The Railroad has repeatedly requested closure of the old crossing and [it] still maintains that old crossing is not safe and should be closed immediately.
Letter dated March 4, 1999 (attached).
STAFF RECOMMENDATION
Despite the agreement of the parties to wait and see whether the U.S. 95 project might provide a means of ensuring adequate access to and from the commercial triangle, it appears from UP’s letter that the Railroad has reverted to its initial position that the old crossing “should be closed immediately.”  Given this turn of events and the public safety issue, the Staff believes that it is appropriate for the Commission to consider establishing an expedited hearing schedule so that the Railroad, the City and other interested persons can present evidence regarding the merits of closing the old crossing.  This matter should be resolved as expeditiously as possible.
As noted in its Order No. 27900, when an objection is made to the closing of a grade crossing, the Commission is vested with the authority to “hear and determine” whether “the closing and abandonment of [an existing] grade crossing is in the interest of, and reasonably necessary for the public safety, or that said crossing is no longer reasonably needed [as a crossing] . . . .”  Idaho Code § 62-305. The Commission shall then issue a written order containing its decision and “subject to review in the same manner as other orders of the commission.”  Id.
COMMISSION DECISION
1.  Does the Commission desire to set an expedited hearing schedule in this matter?  If yes, does the Commission want the parties to prefile their testimony?
2.  Where does the Commission desire to hold a hearing?
3.  Does the Commission desire to grant intervention status to ITD, McDonalds, the Bonner Mall?  As a complainant, the City of Ponderay would already be considered a party.
4.  Anything else?

Don Howell
bls/M:uprr991.dh2