28045.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE PETITION FROM UNION PACIFIC RAILROAD COMPANY TO CLOSE A GRADE CROSSING IN PONDERAY LOCATED AT MILEPOST 76.12.
)
)
)
)
)
)
)
) CASE NO. UPR-R991

NOTICE OF MODIFIED PROCEDURE

NOTICE OF HEARING

ORDER NO. 28045

In November 1998, Union Pacific Railroad requested 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 the closure of the old crossing. In Order No. 27900 issued January 29, 1999, the Commission scheduled a settlement conference “to provide an opportunity for the parties to determine whether they can resolve this matter without further proceedings.” Order No. 27900 at 4. In this Order the Commission is scheduling a public hearing and soliciting written comments whether the old crossing is necessary to provide vehicular access to the surrounding area.

BACKGROUND
This is the third time that Union Pacific (or its wholly-owned subsidiary) has requested an Order authorizing closure of the “old” crossing. The old crossing and its “new” replacement (located at MP 76.45) have been the subject of controversy since 1987. The Commission’s prior Order Nos. 21357, 21442 and 27900 detail the history of this grade crossing dispute. A brief history is provided below.

A. The Commercial Triangle
In 1986 a new grade crossing was constructed across two Union Pacific railroad tracks to provide access to the Bonner Mall with the expectation that the old crossing would be closed. The area surrounding the Mall has generally been referred to in this proceeding as the “commercial triangle.” The commercial triangle 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. The old crossing and the continuing roadway (Fontaine Dr.) were part of old U.S. 95. When U.S. 95 was relocated to the west, the northern portion of old U.S. 95 was vacated and conveyed to the Mall. Old U.S. 95 intersects with the Mall’s frontage road (Bonner Mall Way) which in turn intersects with the relocated U.S. 95.
There are two vehicular access points on U.S. 95 (west side) and two access points on State Hwy 200 (east side). On U.S. 95 there is the southern access of Tibbetts Drive (which dead ends at Fontaine Drive) and the northern intersection at Bonner Mall Way. On Highway 200, there is the southern access at the old crossing to Fontaine Drive and a northern access at the new crossing to East Gate Drive (which connects to Bonner Mall Way). The two Union Pacific tracks (a main line and a side track) generally parallel the east side of the commercial triangle.

B. Procedural History
In September 1986, Union Pacific and the City of Ponderay entered into an agreement to construct a new grade crossing at Bonner Mall in Ponderay. In exchange for granting a right-of-way across the railroad’s two tracks, the agreement provided for the closure of the old crossing. Once the new crossing was installed and Union Pacific began to close the old crossing, a neighboring business objected to the closure. Subsequently, the City filed a Petition requesting that the Commission hold a hearing to determine whether the old crossing should be closed.
Following an evidentiary hearing, the Commission issued Order No. 21357 authorizing the closure of the old crossing once three conditions were met. First, the new crossing was to be equipped with automated flashing warning signals and barrier gates. Second, southbound State Highway 200 would be widened to accommodate a deceleration/right-turn lane on to East Gate Drive at the new crossing. Northbound Highway 200 would also be widened to accommodate a center/left-turn lane at the new crossing. Third, Bonner Mall was to convey to a public entity that part of old U.S. 95 controlling access to the new crossing from the southern part of the commercial triangle. This final 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 nearby businesses other than the Mall through its ownership and control of the northern portion of old U.S. 95. Order Nos. 27900 at 2, 21357 at 8-10.
A Petition for Reconsideration was filed by Bonner Mall. The Mall objected to the third condition. The Mall suggested that Union Pacific purchase that portion of old U.S. 95 and donate it to a public entity for use as a public highway. The railroad objected to this suggestion. Order No. 21442 at 3-4.
In its Order denying reconsideration, the Commission modified the third condition. The Commission stated that the Mall may satisfy the third “condition identified in Order No. 21357 if it conveys an interest in the subject property or takes other permanent action to ensure public access to the entire commercial triangle from the new crossing. We find: such an arrangement will satisfy public safety concerns.” Order No. 21442 at 5.

C. The Present Request
In its November 1998 request, Union Pacific maintained that the three conditions contained in the Commission’s Order Nos. 21357 and 21442 have been met. In response, the City of Ponderay again objected to the closure of the old crossing. Although the City acknowledged that the first and second requirements have been completed, the City maintained that the third condition had not been met. In addition, the City argued that many new businesses have located in the commercial triangle and closure of the old crossing would adversely affect these new businesses.

THE SETTLEMENT CONFERENCE
Pursuant to Order No. 27900, the Commission Staff convened a settlement conference on February 9, 1999, in Sandpoint. The purpose of the conference was to determine whether the parties could settle the grade crossing dispute. More than 20 persons attended the conference including representatives from the Idaho Transportation Department (ITD), the City of Ponderay, Bonner Mall, Union Pacific Railroad, the Sandpoint McDonald’s, and businesses located in the commercial triangle.
ITD representatives from District 1 revealed that planning was underway to improve or relocate portions of U.S. 95. Although public hearings had not yet been scheduled, ITD indicated that several of the improvements under consideration would affect the U.S. 95 access points (Bonner Mall Way and Tibbetts Drive) on the west side of the commercial triangle. In particular, ITD was considering making Tibbetts Drive a right-in and right-out intersection with U.S. 95. In addition, ITD was studying whether the intersection of U.S. 95 and Bonner Mall Way should be fully signalized.
The participants also discussed whether the third condition for closing the old crossing had been satisfied. In particular, the mayor of Ponderay said that the northern part of Fontaine Drive that intersects with Bonner Mall Way (i.e., the subject of the third condition) has not been conveyed to a public entity. The mayor disclosed that public records indicate that the roadway was divided into two equal parcels along the roadway’s center line. Bonner Mall owned the west half of the roadway and the Sandpoint McDonald’s owned the east half of the roadway.
Some of the businesses located in the commercial triangle indicated that closure of the old crossing would inconvenience their operations. More specifically, several businesses indicated that trucks and longer recreational vehicles use the old crossing to enter or exit the commercial triangle. They indicated that the configuration of the present roadway system (e.g., the intersection of Fontaine Drive and Bonner Mall Way/U.S. 95 and the acute turns on East Park Gate Drive) do not permit large vehicles to conveniently and safely move to and from their businesses.
The participants at the settlement conference also discussed the possibility of utilizing a portion of the U.S. 95 improvement project funds to: (1) improve the internal roadway configuration in the commercial triangle; (2) signalize the old crossing; or (3) improve access to new U.S. 95 from the commercial triangle. The participants were advised that signalization of the old crossing would cost between $200,000 and $300,000. In addition, ITD’s rail safety expert indicated that funds from the state grade crossing protection account would not be available for signalization of the old crossing because there were other rail crossings that ranked higher on the safety prioritization list. Idaho Code §§ 62-304A and 62-304D. Consequently, he opined that funds for any signalization project of the old crossing would have to come from the City or other sources such as the highway project funds.
At the conclusion of the settlement conference, the participants (including Union Pacific) agreed to participate in the ITD public hearing process for U.S. 95 and to explore funding alternatives to signalize the old crossing or otherwise improve vehicular access or circulation in the commercial triangle. The attendees also agreed that the PUC proceeding could be held in abeyance until these other alternatives could be explored in greater detail. Finally, ITD agreed to provide data concerning the number of vehicles using the old and new crossings.

UNION PACIFICS SUBSEQUENT LETTER
Despite the apparent agreement of the participants, on March 4, 1999, Union Pacific renewed its request to close the old crossing. In a letter to the Commission, Union Pacific stated that the old crossing is a
very 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 portions of the [prior] Order by constructing the new grade crossing 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 have 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 (emphasis added). Given this change in position, the Commission once again takes up this dispute.

DISCUSSION
As was stated in Order No.  27900, the Commission’s authority regarding grade crossing disputes is set out in Idaho Code § 62-305. This section 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 crossing shall be deemed to be unnecessary and may be eliminated and discontinued.” Id. In cases such as this where there is an objection to the closure of a crossing, then the Commission is
authorized and empowered to hear and determine said [dispute] 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. Thus, in examining the disputed closure of a grade crossing the Commission is to consider public safety and whether the crossing is “no longer reasonably necessary as a public crossing for any reason.” Idaho Code § 61-305.
A review of our prior Orders in this matter is instructive when addressing the safety and public convenience issues. In our initial Order No. 21357 the Commission specifically addressed the safety issue. In that Order, the Commission noted that based upon
the testimony and our viewing [of the crossing], we find: once the new crossing is signalized and the associated road construction completed, the new crossing will be safer than the old crossing for the increased volume of vehicular traffic in and out of the commercial area. Construction of the turn bays at the new crossing will afford adequate holding areas for traffic using the new crossing during train movements. The new crossing also affords greater visibility to vehicular traffic and crosses the railroad tracks at a perpendicular angle.

Order No. 21357 at 8 (emphasis added).
In Order No. 21442 on reconsideration, the Commission noted that Idaho Code § 62-305 empowers the Commission
to close a crossing (1) in the interest of public safety; or (2) when the existing crossing is no longer reasonably necessary for public convenience.…We’ve found that the new crossing, when signalized, would be safer than the old crossing. Order No. 21357 at 8, 10. Our concern about public convenience prompted us to take measures to ensure that public access could be gained to the southern portion of the commercial triangle from the new crossing. As we stated in our [prior] Order, “we will not approve the closure of the old crossing until the new crossing is signalized and Bonner Mall conveys that portion of old U.S. 95 which controls access to the new grade crossing…or takes other permanent action that ensures public access to the entire commercial triangle from the new crossing.”

Order No. 21442 at 3, 5.
It is clear from our review of the prior Orders that the Commission has previously found that satisfaction of the first two conditions makes the new crossing safer than the old grade crossing. Moreover, there appears to be agreement that the first two conditions necessary for closure of the old crossing have been satisfied.
It is the third condition and its effect on the public convenience which appears in dispute. The third condition was imposed to address the public’s need to access a safer crossing when traveling to/from the southern portion of the commercial triangle. From the representations made at the settlement conference, it appears that Bonner Mall has not conveyed the subject portion of U.S. 95 to a public entity but has instead conveyed part of the roadway to an adjacent property owner, McDonald’s. Thus, the Mall does not exercise unilateral control over the northern portion of Fontaine Drive.
Rather than argue whether the third condition has been satisfied, we believe that the controlling issue for the Commission’s resolution at this juncture is whether the concerns for public access necessitate continued usage of the old crossing. Idaho Code § 62-305. In other words, is it reasonably necessary to retain the old crossing given the enhanced safety of the new crossing and the remaining access points to the commercial triangle? Given Union Pacific’s renewed request to close the old crossing, the Commission intends to take evidence regarding whether the old crossing is reasonably necessary to gain access to the commercial triangle.

NOTICE OF MODIFIED PROCEDURE
YOU ARE HEREBY NOTIFIED that the Commission has determined that this matter will proceed under Modified Procedure pursuant to Rules 201 through 204 of the Idaho Public Utilities Commission’s Rules of Procedure, IDAPA 31.01.01.201 through -.204. In particular, the Commission directs Union Pacific to file written comments addressing the issue of whether the old crossing is necessary to gain vehicular access to the commercial triangle. These comments shall be filed with the Commission and other parties no later than June 1, 1999.
YOU ARE FURTHER NOTIFIED that other parties and interested persons are also invited to submit written comments addressing the issue of whether the old crossing is necessary to gain vehicular access to the commercial triangle. Comments must contain a statement of reasons supporting the comment. All written comments concerning this application shall be mailed no later than June 1, 1999 to the Commission and other parties at the addresses reflected below:
COMMISSION SECRETARY
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
Street Address for Express Mail:
472 W WASHINGTON ST
BOISE, ID 83702-5983 CHARLES G. CLARK
SPECIAL REP. TO THE PRESIDENT
UNION PACIFIC RAILROAD
775 N 8TH ST
PO BOX 1745
BOISE, ID 83702

CITY OF PONDERAY
RANDALL R. ADAMS
QUANE SMITH
PO BOX 1758
COEUR d’ALENE, ID 83816
All comments should contain the case caption and case number shown on the first page of this document.

NOTICE OF HEARING
YOU ARE FURTHER NOTIFIED that the Commission also intends to hold a public hearing in this matter on MONDAY, JUNE 7, 1999, AT 7:00 P.M. AT THE EDGEWATER RESORT, 56 BRIDGE STREET, SANDPOINT, IDAHO, ([phone]). The purpose of the hearing will be to take testimony from members of the public. More specifically, the Commission seeks public input regarding whether the old crossing is reasonably necessary to gain access to the commercial triangle.
YOU ARE FURTHER NOTIFIED that the Commission intends to view the old crossing, new crossing, and the general area of the commercial triangle. For purposes of the hearing, persons may assume that the Commission is familiar with the general layout of the commercial triangle.
YOU ARE FURTHER NOTIFIED that for purposes of this proceeding, party status is granted to Union Pacific Railroad, the City of Ponderay and the Commission Staff.
YOU ARE FURTHER NOTIFIED that parties may cross-examine witnesses at the public hearing. Persons desiring to present their views without parties’ rights of participation and cross-examination may testify at the public hearing without prior notification to the Commission or other parties.
YOU ARE FURTHER NOTIFIED that all hearings in this matter will be held in facilities meeting the accessibility requirements of the Americans with Disabilities Act. In order to participate, understand testimony and argument at a public hearing, persons needing the help of a sign language interpreter or other assistance may ask the Commission to provide a sign language interpreter or other assistance as required under the Americans with Disabilities Act. The request for assistance must be received at least five (5) working days before the hearing by contacting the Commission Secretary at:
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, ID 83720-0074
[phone] (TELEPHONE)
[phone] (TEXT TELEPHONE)
[phone] (FAX)

YOU ARE FURTHER NOTIFIED that all proceedings in this case will be held pursuant to the Commission’s jurisdiction under Title 61 and Title 62 of the Idaho Code and specifically Idaho Code § 62-305.
YOU ARE FURTHER NOTIFIED that all proceedings in this matter will be conducted pursuant to the Commission’s Rules of Procedure, IDAPA 31.01.01.000 et seq.

O R D E R
IT IS HEREBY ORDERED that this matter be processed under Modified Procedure. Union Pacific Railroad shall submit written comments addressing whether the old crossing is necessary to gain vehicular access to the commercial triangle no later than June 1, 1999.
IT IS HEREBY ORDERED that other parties and interested persons may also submit written comments addressing whether the old crossing is necessary to gain vehicular access to the commercial triangle no later than June 1, 1999.
IT IS FURTHER ORDERED that the Commission will convene a hearing in this matter to receive public testimony on June 7, 1999, in Sandpoint.

DONE by Order of the Idaho Public Utilities Commission in Boise, Idaho this
day of May 1999.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

Myrna J. Walters
Commission Secretary

vld/O:UP-RR-99-1_dh.doc
The Commission’s prior Order Nos. 21357 and 21442 (Case No. R-2004-6) generally discussed two conditions: (1) the signalization of the new crossing and completion of the highway improvements; and (2) conveyance of the northern portion of old U.S. Highway 95 to a public entity or in some other manner permanently ensuring that motorists using the entire commercial area would have access to the new crossing. The parties in the present proceeding have generally referred to the signalization and highway improvements as separate and distinct conditions. For purposes of clarity, the Commission shall refer to three conditions.

In 1994, Union Pacific made its second request that the Commission issue an Order authorizing the closure of the old crossing. This Application was subsequently withdrawn. Order No. 25783.

NOTICE OF MODIFIED PROCEDURE
NOTICE OF HEARING
ORDER NO. 28045 1

Office of the Secretary
Service Date
May 13, 1999