28106.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.
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) CASE NO. UPR-R991

ORDER NO.  28106

In November 1998, Union Pacific Railroad requested that the Commission issue an Order authorizing the closure of an “old” grade crossing in Ponderay, Idaho located at milepost (MP) 76.12. A “grade crossing” is where a highway crosses a railroad track at the same elevation or “grade.” 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. When settlement proved unfruitful, the Commission scheduled a public hearing and solicited written comments. After reviewing the public testimony, the written comments and our inspection of the area, the Commission authorizes the closure of the old crossing. For reasons set out below, the closure will not become effective until October 1, 2000.

BACKGROUND
This is the third time that Union Pacific 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 here.

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 its present location 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 Highway 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. Staff Revised Exhibit 203. There is also vehicular access to the area on the north side from Triangle Drive and the Kootenai Cutoff Road. Tr. at 12, 15, 62, 141-42.

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. At that time, the Railroad returned the old crossing to service and asked the City to petition this Commission for a closure Order pursuant to Idaho Code § 62-305.
In March 1987, the City rescinded its agreement with Union Pacific because no formal vote had been taken by the City Council. When the City refused to ratify the agreement, the Railroad notified the City that Union Pacific intended to close the new crossing. The City then filed a Petition requesting that the Commission hold a hearing to determine whether the old crossing should be closed. Order No. 21357 at 1-2.
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 was to 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 conceivably deny vehicular access (although there was no indication that it would do so) to the new crossing for patrons of nearby businesses through its ownership and control of the northern portion of old U.S. 95. Order Nos. 27900 at 2; and 21357 at 8-10.
Addressing the issue of public safety, the Commission in its initial order found that
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 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.

A subsequent 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.

D. The Settlement Conference
In Order No. 27900 issued January 29, 1999, the Commission directed the parties to convene a conference on February 9, 1999, in Sandpoint to determine whether the dispute could be settled. 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, the Commission Staff, and other 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 possible 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. Order No. 28045 at 4.
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 following issuance of the Commission’s initial Orders, the roadway was divided into two equal parcels along the roadway’s centerline. The Mall owns the west half of the roadway and the McDonald’s owns the east half of the roadway. Id.; see also Tr. at 133.
Representatives of some 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 Gate Drive) does not permit large vehicles to conveniently and safely move to and from their businesses. Order No. 28045 at 4.
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 the 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’s grade crossing protection account would not be available to pay for signalizing the old crossing. Id. at 4-5.

E. Union Pacifics Subsequent Letter
Following the conference, 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).

THE CURRENT PROCEEDINGS
Given the inability of the parties to resolve this matter, the Commission took up the dispute once again. In Order No. 28045 issued May 13, 1999, the Commission observed agreement among the parties that the first two conditions necessary for the closure of the old crossing have been met. Order No. 28015 at 7. Rather than determine whether the third condition had been satisfied, the Commission stated that the controlling issues in this case are contained in Idaho Code § 62-305. More specifically, in disputes involving closure of a grade crossing, the Commission is to determine whether the closure is necessary for the public safety or whether the crossing is no longer reasonably needed.
Turning first to the public safety issue, the Commission noted that its prior Orders were dispositive on this issue. In particular, the Commission found in Order No. 21357 that “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.” Order No. 28045 at 6-7 citing Order No. 21357 at 8 (emphasis added).
Addressing the second issue of the public’s need to use the crossing, the Commission determined that the record concerning this issue had not been adequately developed. Consequently, the Commission issued a Notice of Modified Procedure soliciting written comments whether the old crossing is necessary to gain vehicular access to the triangle area. In addition, the Commission scheduled a public hearing in Sandpoint seeking public testimony whether the old crossing is necessary to gain access to the area in question. Order No. 28045 at 8-9.

The Written Comments
In response to the Commission’s Order No. 28045, written comments were submitted by: Union Pacific; ITD; Commission Staff; Cenex Co-op; Bonner County Commissioners; City of Ponderay; Papa Murphy’s; and the Bonner County Advisory Transportation Team.
Union Pacific. In its comments, Union Pacific asserted there is reasonable access into the commercial triangle from other points without using the old crossing. The Railroad observed that if the old crossing were closed, there are still two vehicular access points from U.S. 95 and one access point from State Highway 200 at the new crossing. UP Comments at 1. The Railroad also noted that given the southern intersection of U.S. 95 and State Highway 200, persons blocked from entering the commercial triangle may find another open access point by traveling “a relatively short distance.” Id. at 2.
Addressing the safety issue, the Railroad argued that the Commission has already concluded in prior Orders that the new crossing is safer than the old crossing for public access to and from State Highway 200. “Having reached that conclusion, closure of the old crossing should be required regardless of ‘inconvenience’ to the public. The Commission is charged with the responsibility of protecting safety at railroad crossings, not providing for public convenience.” Id. at 2. Union Pacific stated that it was untenable “to maintain the status quo, particularly since the [old] crossing is being used by long recreation vehicles and trucks carrying hazardous materials.” Id. at 4.
Union Pacific also addressed the third condition. The Railroad observed that Idaho Code § 40-202(3) provides that a roadway may become a public highway after five years of use by the public and if the subject roadway has been maintained by a public entity. The Railroad argued that it is reasonable to presume the public has traveled the northern portion of old U.S. 95 for longer than five years, but acknowledged that it did not know whether the roadway in question was maintained by a public entity. “[H]owever, if a governmental agency has been providing snow removal or other maintenance[,] the roads could be public at this time without the need to condemn the property for public use.” Id. at 4.
2. The Commission Staff. Staff commented that closing of the old crossing will improve public safety by closing the dangerous crossing and that the three remaining access points will provide sufficient vehicular access to the commercial triangle. Staff Comments at 1. Staff listed the inherent dangers of the old crossing as no signalization, no barrier gates, two tracks, parked cars on the siding often block drivers’ views, increased train traffic and yard operations, and southbound Fontaine travelers have obstructed vision (looking over their left shoulders). Id. at 5.
Although the Staff acknowledged that some large vehicles may experience difficulty negotiating the turns on the East Gate Drive or the intersection of Fontaine Drive and Bonner Mall Way, access is currently available at Tibbetts Drive. “Staff believes that the old crossing is not reasonably necessary to gain access [to] or exit from the commercial triangle.” Id. at 1-2. The Staff also noted that access to the commercial triangle and its internal roadways could be improved. For example, the private alley between East Gate Drive and Fontaine Drive could be converted to a public street and extended to intersect with U.S. 95. Id. at 4.
3. Cenex Co-op. The Co-op urged the Commission to keep the old crossing open. The Co-op’s president noted that safety at the crossing could be improved by simply signalizing the crossing and improve the roadway surface between the two sets of tracks. He noted that the old crossing “is so rough and full of potholes that one almost hits the bottom of the car on the rail as you drive over the ‘old’ crossing.” Co-op Comments at 1. He disclosed that the Co-op sometimes fill the existing potholes with gravel.
Addressing the issue of vehicular access, he noted that many of his customers utilize the old crossing to travel south on State Highway 200 because of the right-hand turn—as compared to making a left-hand turn across traffic southbound on U.S. 95. He also noted that school buses, logging trucks, sheriff’s vehicles, delivery trucks, and fuel trucks use the old crossing to get to the Co-op’s fuel pumps. He observed that when the crossing dispute first arose in 1986-87, the Co-op was the only building in the commercial triangle. He stated that there are now many more businesses within the commercial triangle and the City of Ponderay encouraged growth in the area. The Co-op and other businesses within the area now depend on the old crossing for vehicular access. Id. at 2.
4. Bonner County and its Advisory Transportation Team. The County Commissioners commented that the main public safety issue regarding the old crossing is its state of disrepair. They maintained that closing the old crossing would adversely affect several businesses. The Commissioners noted that the Ponderay business community has grown significantly since the grade crossing dispute first arose. Businesses within the commercial triangle have come to depend on the access provided by the old crossing. In addition, the old crossing provides an alternative route for access to the commercial triangle during emergency responses. Finally, they concluded that closure of the old crossing would direct vehicular traffic toward the more heavily congested Bonner Mall Way and increase the difficulty for accessing U.S. 95 or State Highway 200 for trucks and larger vehicles.
In its separate written comments, the Bonner County Advisory Transportation Team acknowledged that public safety remains its paramount concern and urged that the crossing be “redecked” and signalized to improve public safety. The Team also observed that the number of businesses locating within the commercial triangle has increased since 1986. “Closure of this [old] crossing, which constitutes a major access to the businesses located on Fontaine Drive, should be considered only when another access has been identified by the City of Ponderay and all other parties involved.”
5. Papa Murphy’s. In its written comments, the store stated that safety was its number one concern. However, closure of the old crossing would only direct more traffic to Bonner Mall Way and Tibbetts Drive. It maintained that there are more vehicular accidents on Bonner Mall Way and Tibbetts Drive than at the old crossing. It also expressed concern that closure of the old crossing would greatly increase response time for emergency vehicles attempting to gain access to the commercial triangle.
Papa Murphy’s also expressed apprehension regarding ITD’s improvement project for U.S. 95 because ITD may restrict access to U.S. 95 at Tibbetts Drive and Bonner Mall Way. The store stated it would definitely lose business if the old crossing were closed.
6. City of Ponderay. In its comments, the City renewed its objection to closure of the old crossing. The City maintained that the question is not whether the new crossing is more safe than the old crossing but whether “the closing of the old crossing itself is reasonably necessary for public safety. The Commission has stated that the new crossing is safer than the old crossing, but has not addressed whether the old crossing is, in fact, unsafe.” Ponderay Comments at 2 (emphasis original). The City asserted that visibility at the crossing is “good” and that there has only been one accident at the old crossing. Consequently, the City contended that the old crossing is reasonably safe. Id. The City argued that ITD’s lower hazardous priority rating for the old crossing must logically mean that the old crossing possesses a lower level of hazard than higher priority, hazardous crossings.
Turning to the issue of public access, the City noted that closure of the old crossing when train operations block the new crossing, would force motorists on State Highway 200 “to drive a considerable distance” to U.S. 95 access points. Id. at 2. Moreover, if all the traffic from the commercial triangle were channeled northward to East Gate Drive and Bonner Mall Way, this added traffic volume would accelerate the degradation of these roadways. The City maintained that the expense of repairing and restoring these roadways would be substantial. Id. at 3.
The City also noted that ITD is in the process of planning for the redesign of U.S. 95. Although the redesign has not been determined and will not be determined until after public hearings this summer, this project “will significantly affect traffic patterns in the commercial triangle. It is entirely conceivable that the importance of the old crossing for public access to the commercial triangle will only grow with the finalization of Highway 95 plans. In any event, it is clearly premature to make assumptions about the importance of the old crossing until those plans are final.” Id. at 3.
The City next insisted the growing number of businesses in the commercial triangle has significantly changed conditions in the area since the Commission’s decision to close the old crossing. The City asserted that the increase in businesses coupled with the “proposed limited access to Highway 95 under the redesign” makes the old crossing essential. Id.
Finally, the City also indicated that certain properties near the old crossing were granted right-of-way access to both Highways 200 and 95. The City questioned whether the closure of the old crossing would destroy that right-of-way access granted those properties. Id.
7. Idaho Transportation Department. The Department’s rail-highway safety specialist, E. Lee Wilson, opined that the public safety would be well served by closure of the old crossing. He noted that train traffic has increased from 1985 levels of 7 movements per day to 21 train movements per day at both the new and old crossings. He noted that in 1995 there was one motor vehicle-train accident at the old crossing. The new crossing has not had any motor vehicle-train incidents. ITD Comments at 1.
Mr. Wilson reported on the traffic volumes at both the old and new crossings. He noted that motor vehicle traffic at the old crossing had increased from 60 average trips per day in 1995 to 182 average trips per day in 1999. The number of peak hour vehicular trips in 1999 was 79. At the new crossing, the average number of motor vehicle trips per day have decreased from 1,100 in 1985 to 637 vehicle trips per day in 1999. The number of peak hour trips this year is 226. Id.
He observed that large trucks or vehicle combinations using the old crossing are forced to encroach into the opposite lane of traffic to negotiate the acute curve in the roadway where the old crossing connects with Fontaine Drive. He noted that if the old crossing remains in use, extensive work will be required to improve the roadway. He also stated that parked railroad cars restrict a driver’s site distance when approaching the crossing from either side. Relocating this crossing to a point farther north to eliminate the acute curve on Fontaine Drive would place the crossing in the middle of the two-track rail yard. This would increase blocking and would decrease safety crossing because of railroad switching operations. Id. at 1-2.
He stated that closure of the old crossing would still provide for three vehicular access points to the commercial triangle. He claimed that trucks and other long vehicles destined for the Co-op or other neighboring businesses can reach these businesses via Tibbetts Drive. He also noted that vehicular traffic may be able to reach the Mall area from the north via Triangle Road on the east side of the commercial triangle. Id. at 2.

THE PUBLIC HEARING
The Commission convened a public hearing on June 7, 1999 in Sandpoint. The purpose of the hearing was to take public testimony regarding the closure of the old crossing. More specifically, the Commission sought testimony regarding whether the old crossing is reasonably necessary to gain access to the commercial triangle. Tr. at 1. For purposes of the hearing, the following parties were present and represented by counsel: Union Pacific Railroad, the Commission Staff, and the City of Ponderay. No other persons sought intervention as a party. Tr. at 3-4.
Fourteen persons testified at the public hearing including business and property owners in the affected area, the Chairman of the Bonner County Commission, and the Mayor of Ponderay. ITD’s Rail-Highway Safety Specialist, Mr. Wilson was called as a witness on behalf of Union Pacific.
Businesses and Property Owners. With one exception, businesses and property owners testifying at the Commission’s public hearing objected to the closure of the old crossing. Several indicated that closure of the old crossing would adversely affect their businesses by reduced vehicular access to or from the commercial triangle. Tr. at 26, 46, 60, 107. Several witnesses testified that larger vehicles such as school buses, fuel trucks, logging trucks and other vehicles utilize the old crossing. Tr. at 13, 32, 113. For example, the general manager of the Co-op testified that many of his customers use the old crossing to exit the commercial triangle. He said it is easier and safer for southbound customers to use the old crossing and make a right-hand turn on State Highway 200 than make a left turn across traffic southbound on U.S. 95. Tr. at 7.
Several witnesses acknowledged that if the old crossing were closed, there would still be four other access points at: 1) Bonner Mall Way and U.S. 95; 2) Tibbetts Road; 3) the new crossing; and 4) Triangle Drive. Tr. at 12, 15, 142. However, several witnesses describe the difficulties that large vehicles may have in utilizing these access points. In particular, three witnesses explained there are several right-angle turns from the new crossing onto East Gate Drive and eventually Bonner Mall Way. Tr. at 37, 44, 47-48, 121. Others expressed concern that ITD had proposed that Tibbetts Road only be a right-in/right-out intersection with U.S. 95. One property owner stated that Tibbetts Road becomes hazardous in the winter time due to icy conditions. Tr. at 47. Others said the new crossing is sometimes blocked by train operation. Tr. at 12.
The owner of Bonner Cab Company testified that large vehicles would have difficulties turning from U.S. 95 onto Bonner Mall Way when turning south onto Fontaine. Tr. at 44. She also testified that her company assists Union Pacific when the Railroad’s switching operations block the old crossing, the new crossing, or the Kootenai Cut-off crossing. Tr. at 38. She indicated that her company may be called to assist Union Pacific as many as three or four times a day, at all hours of the day, lasting from 30 minutes to an hour each time. Tr. at 38-39. She stated that at no time in the last four years when she was at the old crossing did she ever see a hay truck, semi, or school bus utilize that crossing. Tr. at 39.
The greatest safety deficiency at the old crossing identified by the business and property owners was the disrepair of the roadway at the crossing. The Co-op general manager testified that “right now the crossing is so rough and full of potholes that one trying to cross the crossing would almost bottom out his car.” Tr. at 7. He suggested that if safety is a genuine concern, that warning signals could be added to control vehicular traffic at the old crossing. Id. at 6.
In response to questions by the Commission, several customers indicated that they were unaware that the old crossing was to be closed. At the time that the Commission initially took up this matter, the only business in the southern part of the triangle was located in a building currently occupied by the Co-op. Tr. at 8. The owner of Sandpoint Furniture and the former Mayor of Sandpoint testified that the commercial triangle has experienced a growth in economic development. Tr. at 125. Businesses that relocated to the area or recently increased their facilities also indicated that they were unaware that the Commission had authorized the closure of the old crossing once the three conditions were met. At least one business owner intimated that had he known of the possible closure of the old crossing, he may not have located his business in the commercial triangle. Tr. at 54.
Several of the business and property owner witnesses expressed hope that ITD’s improvement project for U.S. 95 might address the consequences of closing the old crossing. Several suggested that traffic signals might improve entry and exit access to the commercial triangle if the intersections were signalized. Tr. at 34, 50. In addition, two business witnesses agreed that improving the private alley and extending it to intersection with U.S. 95 “would definitely make commercial traffic much easier to get across.” Tr. at 39; 52.
Finally, one public witness suggested that closure of the old crossing might be contrary to access granted in condemnation proceedings when U.S. 95 was relocated to its current location. Tr. at 90-91. When was asked whether he would supply the Commission with the condemnation document, the witness indicated that he would do so. Tr. at 98.
Bonner County Commissioner Van Stone. The Chairman of the Bonner County Commission, Dale Van Stone, testified on behalf of the Board of County Commissioners. He characterized the old crossing’s state of disrepair as the worst railroad crossing in the county. Tr. at 68. He noted that vehicular traffic and especially trucks prefer to use the old crossing southbound. Tr. at 68, 83.
On cross-examination, he acknowledged that something needs to be done to improve access within the commercial triangle. Tr. at 76. Although ITD had proposed several U.S. 95 improvements, he noted that the Department’s planning is “not set in stone yet.” Tr. at 74. He further agreed that improving the alley to public street standards would really help the internal circulation and access to the commercial triangle. Tr. at 80.
City of Ponderay. The Mayor of Ponderay, James Hunt, testified on behalf of the City. He explained the ITD planning process for the U.S. 95 project. He said ITD is considering a right-in, right-out at Tibbetts Drive and installing a signal at the intersection of Bonner Mall Way and U.S. 95. Tr. at 134. If the intersection of U.S. 95 and Bonner Mall Way is signalized, then traffic may be precluded from turning onto Fontaine Drive given the close proximity between Fontaine Drive and the aforementioned intersection. Tr. at 133. If all of ITD’s proposals were to be implemented, the Mayor insisted that the commercial triangle would become “landlocked” for motorists desiring to travel south from the commercial triangle. Tr. at 135.
He acknowledged that the City does plow and maintain the northern portion of old U.S. 95. Tr. at 140. He also testified that the City and Bonner Mall were engaged in a dispute regarding the maintenance of Bonner Mall Way. Given the ongoing nature of this dispute, the Mayor suggested that it would be imprudent to count on the new crossing as providing access to the commercial triangle.
Under cross-examination by Union Pacific, the Mayor acknowledged that he was retained by the City in 1986 or 1987 to oppose the closure of the old crossing. Tr. at 137. He explained that although the City ratified the agreement to close the old crossing in exchange for opening the new crossing, the City later repudiated its agreement with the Railroad. Id. Although he was aware since 1987of the Commission’s prior Order authorizing closure of the old crossing, the City has taken no action to insure that businesses moving to the commercial triangle would have sufficient access once the old crossing was closed. Tr. at 139.
When asked if he believed the City had an obligation to advise new businesses moving into the area about the planned closure of the old crossing the Mayor acknowledged that in 20/20 hindsight that the City probably
should have [advised businesses seeking permits to build], but it was one of those things, out of sight, out of mind. People weren’t even thinking about that [closure] because it had been so many years and we did not know that neither the Commission, nor ITD, nor the City could force somebody to give this property if it didn’t wish to, so I think the City was probably remiss, but they were still waiting for a compliance with this Commission’s Order of 1987.

Tr. at 146.
In its closing argument, the City urged the Commission to postpone its decision regarding the old crossing to see what ITD proposes for the U.S. 95 project. Tr. at 164.
Union Pacific. Union Pacific called ITD Safety Specialist, Mr. Wilson, as its witness. Mr. Wilson has been the Department’s grade crossing safety expert for approximately 25 years. Tr. at 149. He outlined several safety issues at the old crossing. In particular, he noted that Fontaine Drive parallels the railroad track until it makes an acute turn at the crossing. This awkward approach requires that drivers southbound on Fontaine Drive use rearview mirrors or look over their left shoulder to see if the way is clear. In addition, he noted that large vehicles must cross into the other oncoming lane (i.e., use both lanes) to make the acute right turn from the crossing to Fontaine Drive and vice versa. Tr. at 151. He reiterated the vehicle trip data for each crossing. Tr. at 150. He concluded that the only reasonable solution to the public safety concerns would be to close the crossing. Tr. at 155.
He asserted that even if the crossing were signalized, that would not solve the problem of large vehicles encroaching in the other lane of traffic or the roadway alignment. He estimated that the cost of signalization alone would be approximately $250,000. That estimate did not include any re-engineering of the roadway approach to eliminate the acute turn. Tr. at 152. He opined that state monies would not be available for signalization because there were other high risk crossings than the old crossing. On cross-examination by the Staff, he agreed that improvement of the alley and intersection with U.S. 95 would provide another access point to the commercial triangle and provide better internal alignment of the roadway system. Tr. at 156.
In closing, Union Pacific noted that it was always its intent to close the old crossing and open the new crossing. Tr. at 160. The Railroad noted that the City had been on notice since 1987 that the old crossing was destined to be closed. However, the City took no action to improve access to the commercial triangle, while at the same time allowed continued development of the area. The Railroad urged the Commission to authorize closure of the old crossing. Union Pacific asserted that until the old crossing is closed, the City will have no incentive to address the roadway access issues within its control. Tr. at 162-63.

DISCUSSION AND FINDINGS OF FACT
As was stated in Order No.  28045 the Commission’s authority regarding grade crossing disputes is set out in Idaho Code § 62-305. This statute 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.
We turn first to examine the safety issue. By their very nature, highway grade crossings are inherently dangerous. The speed, mass, and lack of stopping ability of trains necessitate motor vehicles yielding to train traffic. Idaho Code § 49-648. Even with warning signals and barriers fatalities at crossings occur in Idaho and elsewhere. Idaho Code § 62-305 presumes that whenever any new crossing at grade is built to replace an existing crossing, “then the old crossing shall be deemed to be unnecessary and may be eliminated and discontinued.” In this case, it was clearly the initial intent of the City and Union Pacific to construct the new crossing and close the old crossing. Tr. at 137, 160; Order No. 21357 at 1. The City subsequently repudiated its agreement and this case followed.
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. As we found in our prior Order No. 21357, the new crossing is safer than the old crossing because it is equipped with automatic warning signals, barrier arms, vehicle turn lanes for the highway and is aligned perpendicular to the tracks. Moreover, there is no dispute that the first two conditions necessary for closure of the old crossing have been satisfied.
The testimony and written comments also disclose the hazards present at the old crossing. ITD’s rail-highway safety expert testified that the existing configuration of the old crossing presents several hazardous conditions. He observed that large vehicles using the crossing must intrude into the other traffic lane to make the acute angle where Fontaine Drive intersects the two railroad tracks at the old crossing. He also explained that southbound drivers on Fontaine Road must use their rearview mirrors or look over their left shoulder to look for rail traffic. Staff noted in its written comments, that Fontaine Drive parallels the railroad tracks for approximately 450 feet. We also observed that vehicles accessing the old crossing northbound on Highway 200 do so at a curve in the highway.
Also increasing the hazardousness of this crossing is the increased train movements due to main line trains and yard operations at this location. In addition to the increased number of train movements since we first took up this matter in 1987, the sidetrack is used to park rail cars. As depicted in Staff Exhibit No. 1, the existence of parked rail cars on either side of the old crossing impairs the visibility of trains operating on the other track. Even installing automatic warning signals and barrier gates would not correct the other hazards present at the old crossing.
No witness or commenter disputed these safety concerns. Instead, those that opposed the closing of the crossing did so on the basis that the crossing was still reasonably necessary for access to the commercial triangle. ITD reported that vehicular traffic at the old crossing increased from 60 trips per day in 1985 to 182 trips per day in 1999. The number of trips in the busiest hour of the day was 79. Comments of ITD at 1; Tr. at 150. Despite this increase, traffic at the new crossing is 3.5 times greater than at the old crossing and the peak hour traffic at the new crossing is nearly 3 times greater than at the other crossing. Notwithstanding its current state of disrepair, we find that the old crossing is hazardous to the public safety.
Closure of the old crossing still leaves four other access points to the commercial triangle: 1) the new crossing (on the east side); 2) Triangle Drive (on the north side); 3) Tibbetts Road (west side); and 4) Bonner Mall Way (west side). Even when the new crossing is blocked, it is not a considerable distance to the other access points. Closure of the old crossing may inconvenience some, but we find that the crossing is not reasonably needed. While we recognize that users of the old crossing will have to modify their routes of ingress and egress, we find that the public safety concerns inherent at this crossing outweigh the public’s need to continue using the old crossing.
In its closing argument, the City urged us to refrain from issuing any Order until ITD officially releases its planning document later this summer. However, as was noted by the Mayor, the County Commissioner and others, ITD’s proposals to improve U.S. 95 are merely that—proposals. Tr. at 8, 74, 143. Deciding this matter now will allow City and ITD officials to examine the U.S. 95 improvement project in light of our decision to authorize the closure of the old crossing. We agree with Commissioner Van Stone and others that something needs to be done to improve access within the commercial triangle. Tr. at 76. It is readily apparent (and the Mayor agreed in “20/20 hindsight”) that access and internal circulation in this area should be improved. However, the Mayor conceded that the City has done nothing since 1987 to make sure that businesses that move to the commercial triangle have sufficient access if the old crossing were closed. Tr. at 139. The City now has the opportunity to address these issues.
To provide ITD and local officials the time to examine access improvements as part of the U.S. 95 project or otherwise, the old crossing shall remain open until October 1, 2000. We believe that this affords a sufficient period of time in which to evaluate and seek other access improvements, while at the same time deciding finally that the old crossing shall be closed. We also direct Union Pacific to maintain the crossing surface in a serviceable manner until closure. Idaho Code § 62-306. For example, repair the potholes.
Although we recognize there may be several alternatives to improve access and internal circulation, we agree with those witnesses that testified and recommended that the City and ITD evaluate improving the private alley to public street standards and extending it to intersection with U.S. 95. Tr. at 52, 39, 156, 80. This would align an east-west access to the commercial triangle and make it more convenient for motorists to use the new crossing. Improving the alley would also avoid channeling traffic further north to Bonner Mall Way and adding to traffic congestion.
Although closure of the old crossing may inconvenience motorists currently using it, we believe its closure is necessary in the interest of public safety. Delaying its eventual closure until October 2000 will allow the parties and other interested persons to seek other improvements to mitigate the consequences of its closure.

O R D E R
IT IS HEREBY ORDERED that Union Pacific Railroad’s Petition to close the old crossing is granted as conditioned below. The City of Ponderay’s objection to the closure is denied.
IT IS FURTHER ORDERED that Union Pacific is authorized to permanently close the old crossing on or after October 1, 2000. Until such time, Union Pacific is directed to maintain the roadway surfaces between the rails and between the tracks in a serviceable manner to accommodate vehicular traffic. Union Pacific is directed to make the necessary roadway repairs within 90 days of the service date of this Order.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. UPR-R-99-1 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this order or in interlocutory Orders previously issued in this Case No. UPR-R-99-1. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626.

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

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

vld/O:UP-RR-99-1_dh3
The contract between the City and Union Pacific stated: “ARTICLE VI. CLOSURE OF EXISTING ROAD CROSSING. — Promptly following opening of the new Bonner Mall grade crossing to public travel, railroad shall close and barricade the existing road crossing of its main line at [the old crossing] milepost 76.18 [sic]. City agrees to take all necessary official and administrative action to support such closure.”
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. 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. The second Application was subsequently withdrawn because one of the turn lanes was not yet constructed. Order No. 25783.
Idaho Code § 40-202(3) states in pertain part that “. . .all highways used for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public. . .are [public] highways.”
For purposes of this Order, we do not need to decide whether the third condition originally set out in our prior Orders had been satisfied. However, we note that there was public testimony from the Mayor and the County Commissioner that the City has the northern portion of old U.S. 95. The City has maintained and performed snow removal services. Tr. at 79, 140.
We also decline to address whether closure of the old crossing is contrary to past condemnation proceedings. Neither the City nor the one public witness provided any evidence to support this allegation.

ORDER NO.  28106 18